State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 11, February/March 2008
In this Issue:
Behind the Headlines
New Bills
Local Legislation
IRLI Tip of the Month
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Behind the Headlines
Federal Judges in Missouri and Arizona Deny Challenges to State and Local Licensing Laws Sanctioning Use of Unauthorized Alien Workers.
The right of state and local governments to sanction business entities that employ unauthorized alien workers, by suspending their business licenses, has received two major endorsements from federal courts. These recent decisions confirm important legal doctrines that favor state and local enforcement in employment, contracting, public services, and related areas.
Federal courts are finding that the field of immigration enforcement is not preempted entirely by Congress, and are denying facial challenges to the constitutionality of carefully constructed state and local laws. In addition, federal courts are expressing new skepticism about the standing of illegal aliens to challenge state and local immigration enforcement laws in federal court.
The two new decisions from Missouri and Arizona reinforce the December 2007 opinions by federal judges in the Eastern District of Virginia (upholding an IRLI-designed local law enforcement and anti-sanctuary ordinance against a facial challenge by anonymous illegal aliens), and the Northern District of Oklahoma (upholding the IRLI-designed omnibus Taxpayer and Citizens Protection Act). See the December Legislation Bulletin.
Gray et al. v. City of Valley Park, No. 4:07-cv-00881-ERW (Eastern District of Missouri)
Claims by MALDEF and the ACLU alleging that a municipal complaint system in a St. Louis suburb was unconstitutional and discriminated against Hispanics were rejected on January 21, 2007, when U.S. District Judge Webber granted Valley Park's motion for summary judgment. The Valley Park ordinance, drafted with input from IRLI attorneys, allows citizens and local businesses to file complaints with the town code enforcement office alleging that licensed businesses are using illegal aliens as employees or workers within the town. The business that is the subject of the complaint must then promptly provide the City information that allows the City to verify their authorized employment status with the U.S. Department of Homeland Security, or risk suspension of its license to do business.
The decision gives state and local governments a green-light to enact similar ordinances to combat illegal immigration. Judge Webber's findings included that (1) "federal law specifically permits such licensing laws as the one at issue"; (2) both the ordinance and the federal law provide for voluntary participation in the E-Verify program, unless a business is found to be in violation of either the local ordinance or the federal law, in which case participation becomes mandatory; (3) there was no evidence of alleged discrimination against Hispanics or any other equal protection concern; and (4) the Valley Park ordinance "unquestionably" provided both pre and post-deprivation due process protection to business owners.
This decision confirms that specific language in the Immigration Reform and Control Act (see 8 U.S.C. §1324a(h)(2)), permits state and local governments to enact licensing laws combating illegal immigration, as IRLI has advocated all along. The court dismissed the reasoning in the 2007 Hazleton case (now on appeal before the Third Circuit) as "irrelevant." The decision represents a defeat for the pernicious MALDEF tactic of intimidating small local governments through threats of costly litigation.
Arizona Contractors Ass'n. et al v. Candelaria et al. No. CV07-2496-PHX (District of Arizona)
On February 7, 2008, days after the Valley Park victory, U.S. District Judge Wake issued an even more sweeping grant of summary judgment to the Arizona county attorneys who are directed by Arizona's Legal Arizona Workers Act (LAWA) to enforce a statewide ban on the use of illegal alien workers by licensed Arizona businesses. Enacted as HB 2279 and sponsored by long-time IRLI ally, State Representative Russell Pearce, LAWA was signed into law by Governor Napolitano on July 2, 2007 and is currently the toughest state business sanctions law in the nation.
Judge Wake rejected facial challenges to LAWA on numerous grounds, finding that (1) the business licensing enforcement approach was approved by Congress, (2) states have an interest in preventing the disproportionate harm to the state economy caused by the employment of illegal aliens, (3) states may exercise their inherent police power in the area of business licensing, (4) enhanced state enforcement activity beyond the capability of federal agents did not constitute discrimination of any sort, (5) states and cities may make the voluntary federal E-Verify system mandatory within their jurisdictions, (6) LAWA complaint investigation procedures did not infringe the due process of either the employer or the employee, and (7) LAWA did not violate the Commerce clause because it had no extra-territorial effect outside of Arizona.
The plaintiffs then immediately appealed the decision, seeking an emergency stay to delay implementation of the new law by the Ninth Circuit Court of Appeals. The Ninth Circuit denied the "emergency" stay in late February, and HB 2779 is now the law of the state. Anecdotal media and government agency reports suggest that tens of thousands of illegal alien workers and their dependents have already left the state, many returning permanently to Mexico.
Because state and local sanctions threaten the ability of many employers to maximize profits by employing cheap illegal alien workers, IRLI anticipates continued litigation to challenge individual parts of state and local measures.
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SCR 1016, introduced at the end of January, provides that if at least one parent of a child born in the U.S. cannot demonstrate their lawful status, the registrar shall submit to the parents a birth certificate stating that the parents are illegal aliens and the child shall not be eligible for public benefits. IRLI believes measures like SCR 1016 represent the first move in an attempt to bring a viable challenge to the default doctrine of birthright citizenship for illegal aliens before the United States Supreme Court.
Colorado HB 1272
HB 1272 was introduced at the end of January. HB 1272 mandates that the Governor shall enter into a memorandum of understanding with the Department of Homeland Security for a cooperative agreement or 287(g) agreement (see IRLI July Bulletin for further details on these agreements).
SB 335 was filed by Senator Delph after consultation with IRLI. SB 335 would prohibit the use of illegal aliens by licensed businesses and would bar illegal aliens from receiving public benefits. SB 335 combines model language developed in the Arizona Legal Alien Workers Act (HB 2779) and OK HB 1804.
In mid February, Representative Ramey introduced HB 5756. HB 5756 requires the state Department of Corrections to contact the U.S. Department of Homeland Security when an inmate is suspected of being an illegal alien.
SB 421 prohibits local jurisdictions from restricting communication between employees and federal immigration officials regarding immigration status. This bill also requires officials to enforce federal immigration law. IRLI strongly supports anti-sanctuary measures, based on federal mandates in 8 U.S.C. § §1373 and 1644, to block local government resistance to federal immigration law (see IRLI January 2008 Bulletin for information on unlawful "sanctuary city" resistance movements).
HB 486 would impose fines between $2,500-$5,000 per offense on individuals who employed unauthorized aliens. Although it is illegal for companies to hire and employ an unauthorized alien, imposing civil fines on an employer for violating this status is preempted by federal law. (See IRLI June 2007 Bulletin for details on the extent of federal preemption).
HB 2496 mandates that the Board of Trustees of State Institutions verify the lawful immigration status of enrolled students. Unfortunately this bill did not advance out of committee in the current session.
SB 1080A requires proof of legal residence and a valid Social Security number to obtain a driver's license, permit or identification card from the Department of Transportation. This bill was signed by the Governor on February 15, 2008. The measure removes Oregon from the shrinking list of states that still issue drivers licenses to illegal aliens (see IRLI October 2007 Bulletin for further details on problems with issuance of state licenses to illegal aliens).
SB 392 has passed both houses. Adopting a provision from Georgia's successful SB 529, South Carolina SB 392 mandates that a person's lawful status shall be checked if an individual is confined for a criminal offense. The bill also adopts two other IRLI model provisions, by barring state contracts to firms found to employ illegal aliens, and prohibiting illegal aliens from receiving public benefits.
HB 3961 mandates that an individual's lawful status shall be checked when a person is jailed for committing felonies or driving under the influence. HB 3961 also provides that illegal aliens shall not be eligible for public benefits.
HB 239 mandates that a person's social security number shall be verified before obtaining a driver's license. This measure is a basic step toward document security, and will be required for all states under the REAL ID Act by then end of 2009.
Washington SB 6862
SB 6862 was introduced at the end of January and mandates that an individual demonstrate citizenship in order to be permitted to vote.
HB 62 was introduced mid February. This bill closely resembles the language used in the IRLI-modeled omnibus Oklahoma statute (see IRLI May 2007 Bulletin for details on Oklahoma HB 1804). HB 62 failed to receive a required 2/3 vote needed for consideration in the 2008 session.
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Boston, Massachusetts
The Boston City Council approved a resolution early February which declared that every illegal immigrant has the "unalienable right" to come and live in Massachusetts. The resolution further claims that enforcing federal immigration laws violates the civil and human rights of immigrants. IRLI believes cities that have taken this sanctuary city stance promote illegal immigration and lawlessness, in violation of federal law (see IRLI December 2007 Bulletin for a discussion of legal problems with municipal sanctuary movements).
Evanston, Illinois
In February, the Evanston City Council proposed a resolution that would prohibit city officials from inquiring into immigration status. IRLI submitted a letter citing concerns over liability as well as current litigation by the federal government against an Illinois anti-cooperation statute. The City Council removed the resolution from its agenda (see IRLI December 2007 Bulletin for information of why this resolution would have been unlawful).
Manassas, Virginia
On February 25th the Manassas City Council voted unanimously to enter into a 287(g) agreement with the Department of Homeland Security (see article). The Council approved the hiring of three new police officers and training for seven other officers to identify illegal immigrants who are suspected of committing various offenses (see IRLI July 2007 Bulletin for basic legal requirements for local 287(g) agreements).
Mt. Rainer, Maryland
After concerns about perceived lawlessness, the Mt. Rainer City Council voted to table a resolution that would make Mt. Rainer a sanctuary city (see article). The resolution would have prohibited officers from questioning anyone about lawful status and would have unlawfully restricted communication with federal immigration officials.
Prescott, Arizona
In February, the Yavapai County Board of Supervisors approved a 287(g) agreement with ICE (see article). Ten police officers will train for four weeks in Phoenix, Arizona before they can begin
apprehending illegal aliens.
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Common Claim that Illegal Immigration is a Federal Dilemma
An "urban legend" that has unfortunately been widely disseminated holds that states and local jurisdictions cannot tackle the problem of illegal immigration, since it is solely under federal control. Legislators and members of the public cling to this legend when confronted with the enormous consequences of unchecked illegal immigration. This allegation is entirely false.
Undeniably, the United States Congress has ultimate and prevailing authority over immigration. U.S. Const., Art. 1, §8, Cl. 4. Furthermore, it is accurate that any state legislation or local ordinance that conflicts with or contradicts federal statutes is preempted by the Supremacy Clause. U.S. Const., Art IV, Cl. 2. However, the Immigration Reform and Control Act (IRCA), enacted by Congress in 1986, expressly delineates aspects of illegal immigration that can be targeted. Pursuant to 8 U.S.C. §1324a(h)(2), states and localities are not preempted from enforcing "licensing or other similar laws" targeting the rampant illegal immigration crisis.
IRLI has been advocating that states and local jurisdictions are not preempted in the above-mentioned areas and this reasoning was affirmed by two federal judges discussed above (Arizona and Missouri federal victories). These findings should further embolden states and local jurisdictions that they have viable options to target the illegal immigration problem since the federal government is choosing not to enforce its law. States and localities can and should take matters into their own hands.