Thread: Showdown over sanctions

Showdown over sanctions
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Federal appeals court to weigh in on Arizona’s tough law against the hiring of illegal immigrants
June 9, 2008 - 6:07AM
Howard Fischer
Capitol Media Services

Federal appellate judges will begin weighing this week what right states have to regulate who private companies can hire.

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 this country legally. More to the point, they 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 5-month-old law, which punishes companies that hire undocumented workers.

THE LAW

Effective Jan. 1, all of the state's approximately 150,000 businesses are required to check the legal status of all new workers through the federal EVerify program. There is no penalty for failing to do so. But use of the online program can provide some legal defenses if it turns out the worker is, in fact, in the country illegally.

A company found to have knowingly hired someone not authorized to work in this country can have its licenses suspended for up to 10 days. Errant firms must sign affidavits that they fired the worker. And they also are placed on probation for three years.

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

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 to punish companies that knowingly hire undocumented workers and set up a system for companies to use to verify the legality of new hires. And it pre-empted states from imposing their own punishments.

Challengers also contest the ability of the state to force companies to enroll in the EVerify system, which they say Congress specifically made voluntary. They also 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 only a federal court or hearing officer has the right to determine someone's immigration status.

Federal appellate judges will begin weighing this week what right states have to regulate who private companies can hire.

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 this country legally. More to the point, they 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 5-month-old law, which punishes companies that hire undocumented workers.

THE LAW

Effective Jan. 1, all of the state's approximately 150,000 businesses are required to check the legal status of all new workers through the federal EVerify program. There is no penalty for failing to do so. But use of the online program can provide some legal defenses if it turns out the worker is, in fact, in the country illegally.

A company found to have knowingly hired someone not authorized to work in this country can have its licenses suspended for up to 10 days. Errant firms must sign affidavits that they fired the worker. And they also are placed on probation for three years.

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

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 to punish companies that knowingly hire undocumented workers and set up a system for companies to use to verify the legality of new hires. And it pre-empted states from imposing their own punishments.

Challengers also contest the ability of the state to force companies to enroll in the EVerify system, which they say Congress specifically made voluntary. They also 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 only a federal court or hearing officer has the right to determine someone's immigration status.

THE LOWER COURT RULING

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

Wake pointed out that preemption 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 the state penalties, which could be a "death penalty" for errant employers, are harsher than the fines routinely imposed by the federal government on employers who hire undocumented workers. But he said that was because Congress recognized the costs of having an undocumented work force 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 first 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 there is nothing illegal about requiring all firms to check the legal status of new workers with the federal government's E-Verify system and found 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.

THE ECONOMIC ARGUMENTS

A study commissioned by the Maricopa County Attorney's Office concluded 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, also 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 ones most likely to be competing with those not in this country legally.

But employers challenging the law point out the study did not look at what benefits there may be to the state economy by having so many undocumented workers.

They are instead 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 revenue 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 have been interpreted to allow a company to be punished if it already had an undocumented worker on its payroll when the statute took effect Jan. 1.

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

Legislators also 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 this country to hire workers in Mexico and bring them into this country legally.

The future of that plan is uncertain.

OTHER COURT RULINGS

A federal judge last year struck down an ordinance enacted in Hazleton, Pa., one provision of which took away the city licenses of any firms that hired undocumented immigrants, concluding it improperly infringed on the exclusive powers of the federal government.

The judge there acknowledged the exception in federal law that does allow state and local governments to suspend or even revoke the business licenses of firms that knowingly employ people in this country illegally. But he said that can happen only after a company is found guilty in federal court of violating a federal law; the Hazleton ordinance, like the Arizona law, has no such requirement.

More recently, a federal judge struck down an Oklahoma law that sought to force companies to use the E-Verify system to check the legal status of new employees. The law said those firms that do not use E-Verify must withhold taxes from employees at a higher rate. Oklahoma officials argued federal courts cannot interfere with state tax laws. But the judge there said this was not a tax law. "It is undisputed that the underlying purpose of the act ... is to prevent the employment of illegal aliens," the judge wrote. That, she said, made it a state-imposed civil sanction, something clearly prohibited by federal law.

Federal court rulings from other states are not binding on federal trial judges in Arizona and have no legal value as precedent in the 9th Circuit.

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

Wake pointed out that preemption 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 the state penalties, which could be a "death penalty" for errant employers, are harsher than the fines routinely imposed by the federal government on employers who hire undocumented workers. But he said that was because Congress recognized the costs of having an undocumented work force 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 first 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 there is nothing illegal about requiring all firms to check the legal status of new workers with the federal government's E-Verify system and found 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.

THE ECONOMIC ARGUMENTS

A study commissioned by the Maricopa County Attorney's Office concluded 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, also 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 ones most likely to be competing with those not in this country legally.

But employers challenging the law point out the study did not look at what benefits there may be to the state economy by having so many undocumented workers.

They are instead 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 revenue 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 have been interpreted to allow a company to be punished if it already had an undocumented worker on its payroll when the statute took effect Jan. 1.

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

Legislators also 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 this country to hire workers in Mexico and bring them into this country legally.

The future of that plan is uncertain.

OTHER COURT RULINGS

A federal judge last year struck down an ordinance enacted in Hazleton, Pa., one provision of which took away the city licenses of any firms that hired undocumented immigrants, concluding it improperly infringed on the exclusive powers of the federal government.

The judge there acknowledged the exception in federal law that does allow state and local governments to suspend or even revoke the business licenses of firms that knowingly employ people in this country illegally. But he said that can happen only after a company is found guilty in federal court of violating a federal law; the Hazleton ordinance, like the Arizona law, has no such requirement.

More recently, a federal judge struck down an Oklahoma law that sought to force companies to use the E-Verify system to check the legal status of new employees. The law said those firms that do not use E-Verify must withhold taxes from employees at a higher rate. Oklahoma officials argued federal courts cannot interfere with state tax laws. But the judge there said this was not a tax law. "It is undisputed that the underlying purpose of the act ... is to prevent the employment of illegal aliens," the judge wrote. That, she said, made it a state-imposed civil sanction, something clearly prohibited by federal law.

Federal court rulings from other states are not binding on federal trial judges in Arizona and have no legal value as precedent in the 9th Circuit.
http://oneoldvet.com/?p=6743
http://www.yourwestvalley.com/news/div_ ... wdown.html

Well, we know the 9th circuit UGH. It will go all the way to the Supreme Court.

Quote:
This order is designed to promote economy and efficiency in Federal Government procurement. Stability and dependability are important elements of economy and efficiency. A contractor whose workforce is less stable will be less likely to produce goods and services economically and efficiently than a contractor whose workforce is more stable. It is the policy of the executive branch to enforce fully the immigration laws of the United States, including the detection and removal of illegal aliens and the imposition of legal sanctions against employers that hire illegal aliens. Because of the worksite enforcement policy of the United States and the underlying obligation of the executive branch to enforce the immigration laws, contractors that employ illegal aliens cannot rely on the continuing availability and service of those illegal workers, and such contractors inevitably will have a less stable and less dependable workforce than contractors that do not employ such persons. Where a contractor assigns illegal aliens to work on Federal contracts, the enforcement of Federal immigration laws imposes a direct risk of disruption, delay, and increased expense in Federal contracting. Such contractors are less dependable procurement sources, even if they do not knowingly hire or knowingly continue to employ unauthorized workers.

Contractors that adopt rigorous employment eligibility confirmation policies are much less likely to face immigration enforcement actions, because they are less likely to employ unauthorized workers, and they are therefore generally more efficient and dependable procurement sources than contractors that do not employ the best available measures to verify the work eligibility of their workforce. It is the policy of the executive branch to use an electronic employment verification system because, among other reasons, it provides the best available means to confirm the identity and work eligibility of all employees that join the Federal workforce. Private employers that choose to contract with the Federal Government should meet the same standard.

I find, therefore, that adherence to the general policy of contracting only with providers that do not knowingly employ unauthorized alien workers and that have agreed to utilize an electronic employment verification system designated by the Secretary of Homeland Security to confirm the employment eligibility of their workforce will promote economy and efficiency in Federal procurement.


The Associated Press says Homeland Security Secretary Michael Chertoff and Commerce Secretary Carlos Gutierrez will discuss the new rules at a news conference this afternoon.
http://blogs.usatoday.com/ondeadline/20 ... al-co.html
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Wonder how that's going to play out now?