Thread: U.S. challenge may affect employer-sanctions law

U.S. challenge may affect employer-sanctions law
Enforcement issues persist for private business
by Howard Fischer - Jun. 5, 2008 12:00 AM
Capitol Media Services

Federal appellate judges will start the process this week of weighing what states can and cannot regulate when it comes to hiring by private companies.

The 9th U.S. Circuit Court of Appeals will hear arguments by business groups and Hispanic activists that only the federal government can regulate whether employers can hire people not in the United States legally.

More to the point, the groups contend only the federal government can mete out punishment.
Hanging in the balance of the case - the first of its kind in the nation to go to a federal appellate court - is Arizona's five-month-old law that punishes companies that hire undocumented workers.


The law

Effective Jan. 1, all of the state's approximately 150,000 businesses were required to check the legal status of new workers through the federal E-Verify program.

Under the law, a company found to have knowingly hired someone not authorized to work in this country can have its business licenses suspended up to 10 days.

Errant firms must sign affidavits that they fired the worker, and they are placed on probation for three years.

Another violation within that time period results in revocation of all state licenses and permits, effectively shutting down the company.


The challenge

Business groups contend that the federal Immigration Control and Reform Act approved by Congress in 1986 gives the federal government exclusive control over issues of illegal immigration.

That law added provisions to prior statutes punishing companies that knowingly hire undocumented workers and sets up a system for companies to verify the legality of new hires. It also pre-empted states from imposing their own punishments.

Challengers also contest the ability of the state to force companies to enroll in the E-Verify system, which they say Congress specifically made voluntary. They point to the costs involved, ranging from buying a computer with Internet access to having someone run the checks.

They also question whether a company can be found guilty by a state judge of hiring someone here illegally, contending that only a federal court or hearing officer has the right to determine someone's immigration status.


Ruling at lower court

Judge Neil Wake of U.S. District Court sided, point by point, with attorneys for the state who were defending the law.

Wake pointed out that pre-emption covers civil or criminal penalties "other than through licensing and similar laws." He said that makes Arizona's scheme to suspend or revoke licenses acceptable.

The judge acknowledged that state penalties could be a "death penalty" for errant employers and are harsher than the fines routinely imposed by the federal government on employers who hire undocumented workers.

Still, he said that was because Congress recognized the costs of having an undocumented workforce are not borne by the federal government.

"The pervasive adverse effects of such employment fall directly on the states," Wake wrote. He said Congress "left the strong deterrence of licensing sanctions to individual states to implement in their own circumstances."

Wake also ruled that companies do not have to be found guilty by a federal hearing officer of having hired an undocumented worker before a state judge can suspend their right to do business in Arizona.

He also said nothing is illegal about requiring all firms to check the legal status of new workers with the federal government's E-Verify system, insisting that the financial costs for companies to run those computer checks are so minimal as not to be an undue financial burden.

And he said state law provides employers with sufficient legal protections against having their licenses suspended or revoked without due process.


Economic arguments

A study commission by the Maricopa County Attorney's Office concluded that Arizona workers lose $1.4 billion in wages a year because companies here hire undocumented workers.

George Borjas, a professor of economic and social policy at Harvard University, concluded that having unauthorized workers in the state has reduced the employment rate of legal Arizona residents.

Hardest hit in both wages and job availability, he said, are high-school dropouts who, at the bottom of the wage scale, are the most likely to be competing with people not in this country legally.

Still, employers challenging the law point out that the study did not look to find what benefits would be to the state economy by having so many undocumented workers.

They instead are relying on a study done by Judith Gans, manager of the Immigration Policy Program at the Udall Center for Studies in Public Policy at the University of Arizona. She concluded the costs of illegal immigration in Arizona are more than offset by the state-tax revenues generated by the presence of immigrants here.

That study, however, has its own limits.

While concluding that illegal immigration costs $1.4 billion a year for education, health care and law enforcement, it puts the benefits to Arizona of all immigrant workers at $2.4 billion. Gans does not, however, figure the benefits solely from those in the country illegally.


Subsequent legislation

Since the original law was enacted, state lawmakers approved several changes.

The most significant makes the law effective only for people hired beginning this year.

The original statute could be interpreted to allow a company to be punished if it previously had an undocumented worker on its payroll when the statute took effect Jan. 1.

It also provides new legal protections to companies that take additional steps when screening new workers.

Legislators are weighing another measure crafted by Sen. Marsha Arzberger, D-Willcox, and Rep. Bill Konopnicki, R-Safford, to have Arizona create its own "guest worker" program.

It would permit companies that cannot find qualified employees in the United States to hire workers in Mexico and bring them into this country legally.

The future of that plan is uncertain.

www.azcentral.com

Business groups contend that the federal Immigration Control and Reform Act approved by Congress in 1986 gives the federal government exclusive control over issues of illegal immigration.



Isn't it amazing that after ignoring this Act for so long , that they can now bring it up when they think it suites their purposes? It goes to show that they've been aware they were breaking the law for all those years. Too bad it was not enforced.

Originally Posted by jean

Federal appellate judges will start the process this week of weighing what states can and cannot regulate when it comes to hiring by private companies.

The 9th U.S. Circuit Court of Appeals will hear arguments by business groups and Hispanic activists that only the federal government can regulate whether employers can hire people not in the United States legally.

The liberal 9th, will, of course, rule against AZ and small business.

In other words, Big Brother will dictate who works where.

God Bless America, we need it!

The 9th U.S. Circuit Court of Appeals will hear arguments by business groups and Hispanic activists that only the federal government can regulate whether employers can hire people not in the United States legally.

Businesses and Hispanic groups argue it's not a state's duty to enforce/comply with the law?
Don't oaths of all offices include compliance to ALL laws of the land?

The Full Faith and Credit Clause of the Constitution generally requires states to recognize out-of-state court judgments. But the Constitution otherwise leaves each state with the authority to decide who is licensed to do what within that state. Thus, a state has no constitutional obligation to recognize driver's licenses from other states. whether states just do it as a matter of "comity," which is to say out of a desire to work well with other states (and to get reciprocity for their own citizens).

States can control business licenses.

Originally Posted by Rattler

Originally Posted by jean

Federal appellate judges will start the process this week of weighing what states can and cannot regulate when it comes to hiring by private companies.

The 9th U.S. Circuit Court of Appeals will hear arguments by business groups and Hispanic activists that only the federal government can regulate whether employers can hire people not in the United States legally.

The liberal 9th, will, of course, rule against AZ and small business.

In other words, Big Brother will dictate who works where.

God Bless America, we need it!

Actually, their last couple of rulings regarding illegals have been in our favor and almost rational. I am still in shock, but it is true.

Originally Posted by USA_born

Business groups contend that the federal Immigration Control and Reform Act approved by Congress in 1986 gives the federal government exclusive control over issues of illegal immigration.



Isn't it amazing that after ignoring this Act for so long , that they can now bring it up when they think it suites their purposes? It goes to show that they've been aware they were breaking the law for all those years. Too bad it was not enforced.

*******
I find this also amazing: The pro-illegal people argue that the control of illegal immigration belongs exclusively to the federal government.

On the other hand, when the federal government conducts raids to try to catch illegal immigrants in the workplace, these same pro-illegal immigration people cry foul!, and they now argue that the federal government has no right to conduct such raids.

So, which is it? Does the federal government have the right or not to conduct raids to try to control illegal immigration?

Originally Posted by mirse

Originally Posted by USA_born

Business groups contend that the federal Immigration Control and Reform Act approved by Congress in 1986 gives the federal government exclusive control over issues of illegal immigration.



Isn't it amazing that after ignoring this Act for so long , that they can now bring it up when they think it suites their purposes? It goes to show that they've been aware they were breaking the law for all those years. Too bad it was not enforced.

*******
I find this also amazing: The pro-illegal people argue that the control of illegal immigration belongs exclusively to the federal government.

On the other hand, when the federal government conducts raids to try to catch illegal immigrants in the workplace, these same pro-illegal immigration people cry foul!, and they now argue that the federal government has no right to conduct such raids.

So, which is it? Does the federal government have the right or not to conduct raids to try to control illegal immigration?

They are desperate. They are wrong. They know it. They are grasping at straws.