Sanctions law ruling will ripple across U.S.
June 8, 2008
Pitzl, The Arizona Republic
employer-sanctions law was among the first in the nation to go on the books,
sending the state into a
new world of employee screening, absent workers and anxious waiting for
Now, a year
after it was signed into law, the measure has survived
a challenge in
federal court and is the first in the nation to get an airing before
a federal appeals
court. On Thursday, the 9th U.S. Circuit Court of Appeals hears the case, which
is being pressed by business groups, civil-rights groups and Latino
The law allows the state to suspend or revoke the business license of employers
found to have knowingly hired illegal workers. The case is being closely watched
by lawmakers, attorneys, employers and immigration activists of all stripes. And
not just in Arizona.
The Legal Arizona Workers Act, in effect since January, has spawned
a number of similar
acts in states from Mississippi to Indiana, New Jersey to Colorado.
Two other sanctions-related cases will follow the Arizona case to appeals
courts, likely later this summer. The resulting opinions will shape
a landscape that
could guide sanctions laws nationwide,
pressure on Congress to do something about illegal immigration.
"It's hard to underestimate the impact Arizona has had with its
employer-sanctions law," said Kris Kobach,
a law professor at
the University of Missouri-Kansas City who has been helping the state of Arizona
with its defense of the law.
Arizona, Kobach said, has done two things: It won the first legal challenge
against its sanctions law, which emboldened other states to follow suit.
And anecdotal evidence suggests the mere existence of the law has prompted
illegal workers to deport themselves, lessening their strain on the state,
'The cutting edge'
Critics of the Arizona law also have the case on their must-watch list.
"I think Arizona is on the cutting edge of some of these issues," said Kevin
professor of law and "chicana/o" studies at the University of California-Davis
who advocates open borders.
He said the Arizona Legislature has taken "
a very aggressive
stance" on immigration reform.
At the heart of the three appeals cases is
constitutional question: Do state and local governments have the authority to
set immigration policy?
Yes, attorneys for Arizona say. The role is limited, but they argue that
Arizona's policies fit within the narrow window.
Lawyers representing the city councils in Hazleton, Pa., and Valley Park, Mo.,
are pursuing similar arguments.
In the case of Valley Park and Arizona, federal judges agreed with the
government positions. In Pennsylvania,
a federal judge
said the city overstepped its bounds in requiring every employer seeking
a city business
permit to file an affidavit affirming that the company does not knowingly hire
or employ any illegal workers.
The three cases have set the stage for
a dramatic and
possibly contradictory round of appeals-court decisions that are expected to be
announced this summer or fall, Kobach and Johnson said.
Johnson says the 9th Circuit decision could be the most influential on future
legal rulings, especially since the court deals with more immigration cases than
any other appeals court. In any event, most observers expect that one or more of
the sanctions laws will ultimately be appealed to the U.S. Supreme Court, given
the economic and legal ramifications of the measures.
Arizona's law, like the others, relies on an exemption in the 1986* federal
Immigration Reform and Control Act for local and state governments to take
action when it comes to "licensing and similar laws."
The Legal Arizona Workers Act, state attorneys argue, uses that exemption to
justify its sanctions for illegal hires: Suspension of
business license if an employer is found to have knowingly hired an illegal
offense would result in loss of that license.
But attorneys arguing against the state law say the Arizona Legislature reached
too broadly. A
license intended to spell out the requirements for being
a hairdresser, for
example, should not be used
a way to penalize
The exemption, attorneys for the business and Latino groups say in
a court filing,
does not give Arizona or any other state the right to enact "their own broad
To date, there have been no prosecutions of the law, though The Republic
reported in March that Maricopa County had started five formal investigations.
The lack of prosecutions, Kobach says, raises the hurdle for the complaining
"They've made their threshold argument much harder," Kobach said, because the
plaintiffs have to make a
theoretical case, rather than pointing to
a business that can
show damage from having business licenses suspended or revoked.
In fact, none of the laws at the center of the three cases going before appeals
courts has produced any prosecutions.
Flurry of laws
While the legal battles are being waged, local and state lawmakers are refusing
to sit on the sidelines.
The Missouri General Assembly last month approved an employer-sanctions law that
mirrors the Valley Park ordinance. The bill is awaiting action by Gov. Matt
Republican, who has strongly signaled that he will sign it.
Kobach and Johnson say the state and local action is
a reaction to
Congress' inability to pass immigration reform.
"Part of it has to do with frustration," Johnson said. "I think there's clear
evidence the feds are listening."
He pointed to a
high-profile raid of an Iowa slaughterhouse last month that resulted in the
arrest of 389 immigrants.
And in late May, President Bush announced efforts to streamline the process for
applying for H2B visas for seasonal labor,
a plan to expand
the definition of "temporary" for seasonal laborers from 10 months to three
Kobach said look for the decisions in the sanctions cases -- whichever way they
might go -- to be heard on Capitol Hill.
"I think it's almost certain we'll see another immigration fight in Congress in
2009," he said.
What Arizona and other states are doing
Three laws spelling out a
role for local or state enforcement of immigration law are each now before
appeals court. First up is Arizona's Legal Arizona Workers Act, which will be
heard by the 9th U.S. Circuit Court of Appeals on Thursday.
* The Arizona Legislature approved the Legal Arizona Workers Act in June 2007
and signed into law by Gov. Janet Napolitano on July 2.
The law gives Arizona the right to act on any of
state-issued licenses if the employer is found to have willingly or knowingly
hired an illegal worker.
Eleven days after Napolitano acted on the bill,
a coalition of
business groups, led by the Arizona Contractors Association, sued in federal
court. After some legal twists and turns, the law was upheld in February by U.S.
District Court Judge Neil V. Wake.
* The Hazleton (Pa.) City Council approved the Illegal Immigration Relief Act in
It set out penalties for employers who hired illegal workers and for landlords
who rented to those in the country illegally.
federal judge overturned the city ordinance, saying it was unconstitutional
because it wrongly gave the city power over immigration issues, which are in the
The case is on appeal to the 3rd U.S. Circuit Court of Appeals, and
a hearing is
expected later this summer.
* The Valley Park (Mo.) City Council approved the Illegal Immigration Relief Act
in July 2006 but later amended it to drop sanctions against landlords who rent
to people in the country illegally.
challenging the ordinance argued that the city has no authority to penalize
employers found to have hired illegal workers.
In January, a
federal district court judge upheld the city ordinance. It has been appealed to
the 8th U.S. Circuit Court of Appeals, which is expected to hear the case later
Meanwhile, the Missouri General Assembly approved
a state law that
mirrors the Valley Park ordinance.
Leading by example
Arizona has been a
leader in immigration-related laws, mostly legislation that would crack down on
illegal immigrants. Although there have been numerous legislative proposals,
most of the laws have been approved by voters.
A few examples:
AT THE BALLOT BOX
* No public welfare benefits for people in the country illegally. Approved
* No bail for illegal immigrants arrested for serious crimes. Approved November
* No punitive damages to illegal immigrants in lawsuits. Any financial reward is
limited to actual damages. Approved November 2006.
* Mandates English
is the official language
of government, with various exceptions. Approved November 2006.
* No state-subsidized programs for illegal immigrants in the areas of adult
education and child care, among other programs. Approved November 2006.
AT THE LEGISLATURE
* Penalties for employers who hire illegal workers. Passed June 2007; amended
* Create penalties for people who block public rights of way while seeking or
hiring day labor. Vote pending in the state Senate; approved by the House of
* Create a
temporary-worker program for those Arizona businesses that could demonstrate
shortage in their industry. Workers could be brought in through Mexico. Initial
vote pending in the state Senate; if approved, would need House OK.
* Refer to the ballot a
measure that would require local police agencies to inquire about the
immigration status of people they stop in the course of law-enforcement duties.
final vote in the House; then must go to the Senate for approval.