Thread: Judges seem to like employer sanctions law

June 12, 2008 - 2:57PM
Judges seem to like employer sanctions law

Howard Fischer, Capitol Media Services
SAN FRANCISCO - Federal appellate judges expressed some skepticism Thursday that the federal government should be the only agency to oversee and penalize employers who hire illegal immigrants, as opponents of the state’s new employer sanctions law contend.

Jonathan Weissglass, arguing on behalf of business and civil rights groups, argued that the federal government has pretty much exclusive power over not just immigration but also the penalties that can be imposed on companies that knowingly hire undocumented workers.

But, said Judge John Walker, the current system doesn’t work. In fact, he said, the process that companies now use to verify whether workers are in the country legally “has been shown to be ripe with fraud.’’

“The documents (workers present to companies) are fraudulent,’’ Walker continued.

“So now Arizona wishes to have a better system, a more effective system for this state,’’ Walker said “I still don’t see how that can be a problem.’’

“It’s Congress’ decision about how to reform laws governing the employment of immigrants,’’ Weissglass responded.

“Where does it say that, that the states are prohibited from enforcing employer sanctions?’’ Walker shot back.

Weissglass warned that allowing each state to enact -- and enforce -- its own employer sanctions law would have wide-ranging ripple effects, “Balkanizing our immigration laws and dramatically increasing the burden on employers.’’

“This case will set the law that will decide whether every state and locality can do this,’’ he said.

And that, Weissglass said, creates special problems for national firms that will have to deal what could be different laws in each state.

The law, which took effect Jan. 1, requires all companies doing business in Arizona to check the legal status of new workers through the federal government’s E-Verify system.

Of greater concern to employers is that the law allows a state judge to suspend or revoke any and all state licenses and permits of firms found guilty of knowingly hiring undocumented workers. A second violation within three years puts the company out of business in Arizona.

U.S. District Court Judge Neil Wake rejected challenges to the law, leading to Thursday’s appeal.

Weissglass said one problem with the law is that it lets a state judge decide whether the worker is here legally. He argued that power resides only with federal hearing officers and judges, a procedure he said has “procedural safeguards.’’

But Judge Mary Schroeder, who is an Arizonan, said the state is not trying to set some definition of “undocumented worker’’ that is different than federal law.

Weissglass, however, said the sanctions under federal law generally are in the form of fines. Arizona’s statute, he said, “provides for the business death penalty.’’

He also noted that when Congress approved the E-Verify program it made participation by employers voluntary.

Judge Randy Smith said all that presumes members of Congress never intended to let states enact their own laws on employment of illegal immigrants and their own mandates for what procedures Arizona employers must follow.

“I can’t find it in the law to suggest that they didn’t want this to happen,’’ he said.

That is the contention of state Solicitor General Mary O’Grady who asked the three-judge panel to uphold the law.

She said there is nothing unusual about Arizona barring companies from knowingly hiring undocumented workers. She pointed out such actions have been illegal under federal law since 1986.

“The variation might be the sanctions,’’ she said.

But O’Grady pointed out that while Congress did prohibit states from imposing civil and criminal penalties against violators, it “specifically permitted’’ states to take action against the licenses of firms that break the law.

O’Grady also brushed aside Weissglass’ arguments that Arizona can’t force states to check the legal status of new workers through the E-Verify system.

“I don’t think the ultimate goal here of Congress was to establish a voluntary employee verification system,’’ she argued.

“Why not?’’ Schroeder interjected.

“The goal was to establish an effective verification system because there were concerns the (existing employer verification) system wasn’t effective,’’ O’Grady responded. “They wanted to come up with something better.

And O’Grady pointed out that President Bush, just this past week, issued an executive order requiring all companies that have federal contracts check the status of workers through that E-Verify system.

David Jones, president of the Arizona Contractors Association, one of the groups that sued, conceded after the hearing it appeared the judges were not buying the arguments that the state overstepped its legal grounds. He said if the appellate court upholds the law, as did Wake, it may be necessary to go to the U.S. Supreme Court.

“At any time you think your members’ constitutional rights are being breached, you have to be prepared to take it to the limit,’’ he said.







http://www.eastvalleytribune.com/story/118398

Let's hope the lawyer is right and it won't go his way.

Weissglass warned that allowing each state to enact -- and enforce -- its own employer sanctions law would have wide-ranging ripple effects, “Balkanizing our immigration laws and dramatically increasing the burden on employers.’’

So let me get this straight. If a company has offices in different states now, they can't figure out the different tax codes and regulations they need to use. COME ON. If a company is in one state NO problem. If they have several offices they just need to know that states laws. Let's be honest here. Companies move to states because of better taxing and legal issues. Are you going to tell me they are so dense they can't figure this out. If they can't, they should be in business.

He said if the appellate court upholds the law, as did Wake, it may be necessary to go to the U.S. Supreme Court.

I seriously doubt the Court would want to take this on and open up States Rights issues.