Federal Court Upholds Arizona's Immigration Law
Amid the ongoing national debate about immigration reform, states and municipalities throughout the U.S. have passed their own laws aimed at combating illegal immigration and ...
March 31, 2008 at 08:00 PM
11 minute read
Amid the ongoing national debate about immigration reform, states and municipalities throughout the U.S. have passed their own laws aimed at combating illegal immigration and punishing businesses that benefit from it. When these bills and ordinances began making headlines in 2006, most immigration attorneys suspected they would not survive a pre-emption challenge. Regulating the flow of people across national borders has always been the province of the federal government.
Following that logic, the first of these statutes to be challenged in federal court–Hazleton, Pa.'s Illegal Immigration Relief Act–was summarily struck from the books in July 2007. But the Federal District Court in Arizona dealt businesses a surprise in February when it upheld the Legal Arizona Workers Act, a statute similar to Hazleton's, which imposes tough sanctions on employers who hire illegal workers.
“It's clearly unconstitutional,” says Sidney Lachter, a Tucson, Ariz.-based immigration attorney who represents business owners in the state. “The judge missed it–immigration is beyond the jurisdiction of Arizona or any state.”
Many employers agree, but for now the Arizona law stands, and its victory in court marks the beginning of a new chapter in the national battle for the future of immigration reform.
Arizona Crackdown
The Legal Arizona Workers Act seeks to crack down on illegal workers in two ways. It requires all employers in the state to enroll in the federal government's E-Verify program–an electronic database through which employers can verify the eligibility of workers–and it imposes drastic penalties against any employer that intentionally employs an illegal alien. The penalty for a first offense is a 10-day revocation of the employer's license to do business. Following a second offense, the state permanently revokes the business license.
When the act passed in July 2007, a coalition of business owners, contractors, associations, and the state and national chambers of commerce immediately challenged it, arguing that the federal Immigration Reform and Control Act of 1986 pre-empted it and that as a practical matter, it would have serious adverse consequences for businesses in the state.
Large employers in particular are concerned about how the law will affect them. For instance, it's unclear whether the license-revocation provision applies to the whole business, or to the single location at which the employment of an illegal immigrant occurred.
“It leaves large employers at the mercy of the store managers who do the hiring,” Lachter points out. “It appears that a McDonald's franchisor who owns multiple locations would be put completely out of business if one store manager hires two unauthorized workers.”
Employers also argued that the law leaves open the possibility that the hiring of an illegal worker outside the state could be the basis for the revocation of an Arizona business license.
The District Court rejected those arguments. It noted that while states cannot regulate immigration, they can regulate employment and the licensing of businesses. It found that the Legal Arizona Workers Act did just that. “The Act does not determine who should or should not be admitted into the country, and the conditions under which a legal entrant may remain,” the court wrote. “Aliens do not gain, lose or change their status … when they are processed through E-Verify. The Act's E-Verify requirement is therefore a regulation of employment, not immigration.”
Employers have a serious quarrel with that reading of the statute. “In a broad context, the Hazleton and Arizona laws are trying to accomplish the same thing in the same manner,” says Elena Park, a member of Cozen O'Connor who represented the parties who successfully challenged the Hazleton ordinance. “The laws punish employers and add burdens not contemplated by federal law.”
The plaintiffs now will take that argument to the 9th Circuit. But the 9th Circuit rebuffed their initial request Feb. 28, denying an emergency injunction to stay enforcement of the law pending the appeal. So Arizona officials began enforcing the law on March 1.
Comply or Defy
Given the draconian sanctions the law imposes, Arizona businesses are now scrambling to get into compliance with the statute–with considerable trepidation.
Many employers are particularly troubled by the requirement that they use the E-Verify program, which, similar to the Social Security no-match system, often delivers unreliable results. Despite the publicity the Legal Arizona Worker Act has received, by the end of February, fewer than 20,000 employers in Arizona had registered for E-Verify.
“It's not at all uncommon for people to show up as illegal when they're not,” Park says. “Employers are forced to crack down in reliance on information that may not be accurate.”
Indeed, the shortcomings of the E-Verify program recently led Illinois to enact a statute forbidding employers to use it until its accuracy is improved. That law too is being challenged in court. In the meantime, a company operating nationwide is stuck in a true catch-22–required by law to use the system in one state, banned by law from using it in another.
While employers wait for the federal government to deal with the conflicting state regulations and develop more reliable systems for verifying worker eligibility, they can take some comfort in the fact that as long as they continue to carefully maintain compliance with existing federal regulations, they should be in the clear.
“If employers follow the federal law to an absolute 't' they should by extension be in compliance with the state laws,” Park says.
Amid the ongoing national debate about immigration reform, states and municipalities throughout the U.S. have passed their own laws aimed at combating illegal immigration and punishing businesses that benefit from it. When these bills and ordinances began making headlines in 2006, most immigration attorneys suspected they would not survive a pre-emption challenge. Regulating the flow of people across national borders has always been the province of the federal government.
Following that logic, the first of these statutes to be challenged in federal court–Hazleton, Pa.'s Illegal Immigration Relief Act–was summarily struck from the books in July 2007. But the Federal District Court in Arizona dealt businesses a surprise in February when it upheld the Legal Arizona Workers Act, a statute similar to Hazleton's, which imposes tough sanctions on employers who hire illegal workers.
“It's clearly unconstitutional,” says Sidney Lachter, a Tucson, Ariz.-based immigration attorney who represents business owners in the state. “The judge missed it–immigration is beyond the jurisdiction of Arizona or any state.”
Many employers agree, but for now the Arizona law stands, and its victory in court marks the beginning of a new chapter in the national battle for the future of immigration reform.
Arizona Crackdown
The Legal Arizona Workers Act seeks to crack down on illegal workers in two ways. It requires all employers in the state to enroll in the federal government's E-Verify program–an electronic database through which employers can verify the eligibility of workers–and it imposes drastic penalties against any employer that intentionally employs an illegal alien. The penalty for a first offense is a 10-day revocation of the employer's license to do business. Following a second offense, the state permanently revokes the business license.
When the act passed in July 2007, a coalition of business owners, contractors, associations, and the state and national chambers of commerce immediately challenged it, arguing that the federal Immigration Reform and Control Act of 1986 pre-empted it and that as a practical matter, it would have serious adverse consequences for businesses in the state.
Large employers in particular are concerned about how the law will affect them. For instance, it's unclear whether the license-revocation provision applies to the whole business, or to the single location at which the employment of an illegal immigrant occurred.
“It leaves large employers at the mercy of the store managers who do the hiring,” Lachter points out. “It appears that a McDonald's franchisor who owns multiple locations would be put completely out of business if one store manager hires two unauthorized workers.”
Employers also argued that the law leaves open the possibility that the hiring of an illegal worker outside the state could be the basis for the revocation of an Arizona business license.
The District Court rejected those arguments. It noted that while states cannot regulate immigration, they can regulate employment and the licensing of businesses. It found that the Legal Arizona Workers Act did just that. “The Act does not determine who should or should not be admitted into the country, and the conditions under which a legal entrant may remain,” the court wrote. “Aliens do not gain, lose or change their status … when they are processed through E-Verify. The Act's E-Verify requirement is therefore a regulation of employment, not immigration.”
Employers have a serious quarrel with that reading of the statute. “In a broad context, the Hazleton and Arizona laws are trying to accomplish the same thing in the same manner,” says Elena Park, a member of
The plaintiffs now will take that argument to the 9th Circuit. But the 9th Circuit rebuffed their initial request Feb. 28, denying an emergency injunction to stay enforcement of the law pending the appeal. So Arizona officials began enforcing the law on March 1.
Comply or Defy
Given the draconian sanctions the law imposes, Arizona businesses are now scrambling to get into compliance with the statute–with considerable trepidation.
Many employers are particularly troubled by the requirement that they use the E-Verify program, which, similar to the Social Security no-match system, often delivers unreliable results. Despite the publicity the Legal Arizona Worker Act has received, by the end of February, fewer than 20,000 employers in Arizona had registered for E-Verify.
“It's not at all uncommon for people to show up as illegal when they're not,” Park says. “Employers are forced to crack down in reliance on information that may not be accurate.”
Indeed, the shortcomings of the E-Verify program recently led Illinois to enact a statute forbidding employers to use it until its accuracy is improved. That law too is being challenged in court. In the meantime, a company operating nationwide is stuck in a true catch-22–required by law to use the system in one state, banned by law from using it in another.
While employers wait for the federal government to deal with the conflicting state regulations and develop more reliable systems for verifying worker eligibility, they can take some comfort in the fact that as long as they continue to carefully maintain compliance with existing federal regulations, they should be in the clear.
“If employers follow the federal law to an absolute 't' they should by extension be in compliance with the state laws,” Park says.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllOld Laws, New Tricks: Lawyers Using Patchwork of Creative Legal Theories to Target New Tech
Lawsuit Against Amazon Could Reshape E-Commerce Landscape
King Kullen—the Nation's First Supermarket—Hires Outside Counsel as GC
Trending Stories
- 1Law Firm Accused of Barratry for Allegedly Soliciting Crash Victims
- 2Carlton Fields Downsizes in Move to New Atlanta Office
- 3Trump's Selection of Zeldin to Head EPA Draws Surprise, Little Hope of Avoiding Deregulation
- 4Against the Odds: Voters Elect Woody Clermont to the Broward Judicial Bench
- 5US Supreme Court Justices Pass on Landlord Challenge to NY Rent Stabilization
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250