By Howard Fischer
Capitol Media Services

Published on Thursday, November 15, 2007
PHOENIX — Arizona businesses may not be able to challenge a new law making it illegal to hire undocumented workers unless at least one can show some actual harm from the statute — perhaps by being charged with breaking it.

At a hearing Wednesday, attorneys for various companies and business groups argued to U.S. District Court Judge Neil Wake only the federal government can punish companies that employ people not in this country legally. They said that makes the new state law to suspend or revoke the licenses of those who are hiring undocumented workers illegal.
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But Wake told them even if he accepts their arguments — something he has not indicated he does — only those who can show some immediate threat of prosecution have standing to ask him to void a state law. And he noted none of the plaintiffs in the lawsuit admits to hiring those not legally permitted to work here.

The judge also suggested the entire lawsuit may be flawed. He pointed out the legal papers ask him to block Gov. Janet Napolitano and Attorney General Terry Goddard from enforcing the statute. But Wake noted the law gives the actual job of prosecuting errant employers to the 15 individual county attorneys.

All that could mean that Wake, who has promised to rule before the law takes effect Jan. 1, might never answer the central question of whether Arizona can enact laws to ensure firms hire only citizens and legal U.S. residents.

The statute allows a judge to suspend a firm’s ability to do business for up to 10 days if it is found to have knowingly hired an undocumented worker. A second offense within three years results in permanent revocation of all state licenses and permits.

Attorney David Selden, whose clients include the Arizona Contractors Association, the state Chamber of Commerce and Industry, the Arizona Farm Bureau Federation and the Arizona Restaurant and Hospitality Association, said Congress specifically barred states from imposing civil or criminal penalties on firms which hire undocumented workers.

But Wake pointed out that 1986 federal law permits states to enact “licensing or similar laws.â€