Cover Story

States' rights

"States' rights" Continued...

Issue: "States' rights," Oct. 27, 2007

In 2004 and 2006, Pearce and other enforcement-first advocates, including Arizona GOP chairman Randy Pullen, sponsored a slate of immigration-related ballot measures. The five propositions required photo I.D. for voter registration and voting, cut public services for illegal residents, and barred judges from granting bail to illegals charged with a felony. The measures also prohibited the undocumented from receiving punitive damages when suing a U.S. citizen and made English Arizona's official language.

All five measures sailed to victory; four of the five won 75 percent of the vote. Together, the new restrictions were the toughest in the nation. Then came House Bill 2779.

Earlier this year, the Arizona statehouse passed the Pearce-authored "Fair and Legal Employment Act." The new law, which takes effect Jan. 1, seeks to cut off migrants' economic incentive for coming to the state by severely rapping employers who knowingly hire them. The first time an employer is caught, the state can order a 10-day suspension of the firm's business license. The second time, the state must revoke the firm's license altogether. HB 2779 also requires all employers to use the "Basic Pilot Verification Program," a federal identity-matching database.

Though Democratic Gov. Janet Napolitano has in large part refused to enforce the particulars of previous years' ballot measures, she signed Pearce's employer-sanctions bill.

Business and labor groups were aghast.

David N. Jones, president and CEO of the Arizona Contractors Association (ACA), argues that HB 2779 puts honest employers at risk. Under current state law, regulatory agencies can already hold hearings and enact sanctions if an employer is suspected of hiring illegal immigrants. With HB 2779, said Jones, "there is no due process. Someone can drop a dime on you, be it an ex-employee, a creditor, or a disgruntled ex-wife. All they have to do is file a frivolous complaint, and the county attorney or the attorney general is required to investigate."

Jones represents construction industry professionals who, with labor and civil-rights groups, populate what might be called Arizona's "enforcement plus" camp-people who want to secure the borders, but also create citizenship opportunities for current illegal residents and liberalize visa programs in order to assure a steady supply of foreign labor.

Jones said HB 2779 provides no "safe harbor" for employers who hire illegal immigrants by mistake. In addition, human resources personnel who closely scrutinize identity documents and then refuse to hire a person may risk being sued under state and federal anti-discrimination laws-on the basis of race or national origin, for example.

For his part, Pearce dismisses all of Jones' arguments as "myths."

Employers who in good faith use the Basic Pilot program and complete an I-9-a federal document verifying an applicant's immigration status-"have an affirmative defense," Pearce said. He added that employers are not required to take any action that they believe will violate state or federal law.

Still, the fear of arrest or deportation has triggered an immigrant exodus from Arizona in advance of the Jan. 1 deadline, USA Today reported on Sept. 27. School officials note drops in enrollment among Hispanic students. Real estate agents report a surge in homes offered for resale, attributing the uptick to undocumented residents who are packing up and leaving.

The enforcement-first camp says the exodus proves their strategy works. The enforcement-plus camp says it proves only that a kind of "social pressure" has been levied on a certain class of people, forcing them to go elsewhere.

The contractors' association and a coalition of 11 other business groups have filed suit against HB 2779 in federal court, seeking to block enforcement of the law, which they say is unconstitutional.

"Immigration law is the responsibility of the federal government under the Constitution," said Dave Selden, attorney for the plaintiffs. "State and local governments cannot enact their own business-related immigration laws. It's a prescription for economic chaos to have a bunch of local politicians and law enforcement officials jumping in to try and regulate hiring practices."

Selden was set to file a final brief in the suit on Oct. 19. U.S. District Court Judge Neal Wake is expected to rule on the case in early December.

That ruling will be pivotal. If Wake upholds HB 2779, the employer-sanction strategy will likely spread to other states. If he rules the law unconstitutional, the current wave of state and local immigration reform may slow to a trickle, adding urgency to the nationwide demand for Congress, finally, to act.

-with reporting by Kristin Chapman

States vs. illegals

Among the other states and municipalities taking action in the vacuum created by federal fecklessness on immigration reform:

Virginia: Fairfax's county executive on Oct. 17 vowed to begin studying which services might be restricted from illegal immigrants. Officials in Richmond County, meanwhile, rejected a proposal to build a 1,000-bed detention center for illegal immigrants. Instead, a state immigration task force approved a proposal to increase funding for construction or expansion of local jails.

Oklahoma: On Oct. 15, attorneys for the National Coalition of Latino Clergy and Christian Leaders filed suit to block the Oklahoma Taxpayer and Citizen Protection Act. Enacted in May, the law denies illegal immigrants state identification and requires all state and local agencies to verify that applicants for public benefits are American citizens. The measure also requires public employers to run job applicants' data through a federal immigration database. Hispanic evangelical churches in the state say they have lost an average of 12 percent of their membership since the law passed in May.

Texas: A U.S. district court on Oct. 12 rejected an appeal by the city of Farmers Branch. The suit claimed the city violated Texas' open-meeting law when it met in November 2006 to debate an ordinance that would prevent illegal immigrants from renting apartments. The council held a public vote approving the ordinance, but later rescinded the law. Voters in May then approved a new ordinance, but a judge blocked enforcement.

California: Gov. Arnold Schwarzenegger on Oct. 11 signed legislation that prevents municipalities from requiring landlords to inquire about or report on the immigration status of tenants. The American Civil Liberties Union, along with landlord, labor, and pro-immigrant groups, pushed the bill after the city of Escondido in 2006 passed an ordinance penalizing landlords who rented to illegal residents.

Pennsylvania: A federal lawsuit is pending on a similar ordinance in the city of Hazelton.

New Jersey: In September, the Riverside town council voted to repeal the Riverside Township Illegal Immigration Relief Act after the ACLU and immigrant groups filed suit. The ordinance, passed in July 2006, would have sanctioned landlords and businesses who rented to or hired illegal immigrants.

Missouri: In August, Republican Gov. Matt Blunt launched a two-pronged plan to crack down on illegal immigrants. First, he ordered random worksite checks to ensure that state-paid contractors aren't employing illegal workers. Blunt also announced a plan to train and "deputize" state and local law enforcement officers to act as immigration officers, enabling them to check the legal status of any person arrested. "Ideally this is a federal issue," Blunt told reporters in St. Louis. "But Washington has failed."

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