Thread: AZ: Robert Robb: Keep the hood up on immigration law

Robert Robb
Keep the hood up on immigration law
Federal Judge Neil Wake's decisions have cleared much of the dust kicked up by the business community about Arizona's employer-sanctions law for hiring illegal immigrants.

Contrary to the claims of the business community, prosecutors don't have to pursue frivolous claims, according to Wake. They retain the same discretion they have in enforcing other laws.

And contrary to the claims of the business community, employers retain full procedural rights to defend themselves in court.

That does not mean, however, that the legal questions about the employer-sanctions law are fully resolved. Wake's decisions have been least persuasive on the most important question of all: Is Arizona's approach pre-empted by federal law?

The federal law at issue says that it "preempt(s) any state or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ . . . unauthorized aliens."

The question is whether Congress intended states to have parallel and independent enforcement authority regarding licensing, or only sequential authority, the power to add licensing sanctions after the feds had adjudicated the underlying claim of hiring illegal workers.

The Arizona law assumes parallel enforcement authority, that the state can suspend or revoke a license for hiring illegals even if the feds haven't acted.

The argument that Congress only intended sequential authority, however, has considerable logic to it. If Congress had intended states to have parallel enforcement powers, why limit them to only the most severe sanction, putting someone out of business?

Wake's dismissal of that argument is dubious. Congress recognized that the burden of illegal immigration fell disproportionately on states, so gave states the ability to impose a harsher penalty, he ruled.

That's an imaginative interpretation, but Wake cited utterly no evidence that was, indeed, what Congress had in mind. And it still makes no sense.

A disproportionate burden might explain why Congress allowed states a stronger sanction. However, if Congress intended for states to have parallel enforcement authority, that still doesn't explain why it decided to deny the states the option of lesser penalties. Why give states only the death penalty?

So, opponents of the law have reason to hope for better success upon appeal.

In the meantime, there are some fixes in the Arizona law that this litigation and other reflections suggest.

The biggest changes the business community wants are self-evidently unreasonable. For example, the business community wants to prohibit anonymous complaints. However, those most likely to know an employer is hiring illegal workers are that employer's legal workers, for whom the need for anonymity is obvious.

The business community also wants to make the use of the electronic verification system an absolute defense against a violation. However, it's easy to imagine circumstances, not particularly far-fetched, where that would be inappropriate.

Let's assume John Doe applies for a job, gets a negative from the database query and chooses not to appeal. But the employer says, here's someone you ought to go see. The next day, the same applicant comes back as Samuel Adams, the database says OK, but the real Samuel Adams is drawing Social Security in Florida.

Should the employer get to walk?

The law makes using the electronic verification system a rebuttal presumption against a violation. That requires pretty solid evidence of connivance for a successful prosecution.

There are a couple of areas where the law should be fixed.

The law imposes penalties for "knowingly" hiring illegal workers. For most people, "knowingly" is a pretty clear concept: You either know or you don't.

In law, however, things are rarely that simple. The law makes a distinction between "actual knowledge" and "constructive knowledge." Constructive knowledge is a nebulous concept. The best I can do to describe it is this: Given the totality of the circumstances, the person must have known, even though it can't be proved that he did know.

Constructive knowledge might be an OK standard for some things, but not putting someone out of business. The Legislature should clarify that only actual knowledge triggers a violation.

There is also some ambiguity, noted in Wake's final decision, about what evidence can be heard on the threshold question of whether the workers in question are, in fact, illegal. Again, with such a harsh penalty, there should be no ambiguity or limits on the evidence.

With those fixes, the business community could continue to squawk about the effects of the law, but not its fairness.

Topics:

posted by RobertRobb on Thursday, February 14, 2008 at 10:22 PM
http://www.azcentral.com/members/Blog/RobertRobb/17256

Common sense tells everyone and employers in most cases whether they hire illegals or not-patterns persisit-applications that ask very little imformation (I go to businesses that seem to hire almost no one but non english speaking and this is the case 98% of the time,plus they always tell me they are not hiring) crews do not reflect makeup of the community-(all non english speaking crew in town of 95% english speaking -We have pattern in my area -every greek owned restuarant has all young white females (12 or more) and all hispanic non english speaking cook and bus boy -never have I seen a black male or female,white male or hispanic female -there are about 5 restuarants -2 with same name-they are getting ready to open another ina couple of weeks and I would bet any amount of money(I am going to put in application) the same pattern occurs.I went in one of these places the day after the illegals marched and she said the family had to come in and do the cooking etc-I asked the head hostess why it seemed that no blacks,whitemales,asians,etc want to work there-she took off with no answer.