State and Local Legislation Bulletin
Carl Little, Esq., Editor · Issue 24, May 2009
In this Issue:
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IRLI General Counsel Testifies Before Arizona Senate Appropriations Committee
On May 21st, IRLI General Counsel Michael Hethmon was invited by Senator Russell Pearce, Chairman of the Senate Appropriations Committee, to testify as an expert witness on the question of whether local governments and agencies may restrict their law enforcement agencies and officers from assisting in enforcing our nation's immigration laws. These policies are commonly referred to as "sanctuary policies" and the cities that implement them are called "sanctuary cities." Hethmon responded to the question posed by stating, "My short answer would be no." However, he then led the committee through the history of illegal sanctuary actions in the United States and a legal analysis of why these types of policies are prohibited. Much of this analysis, Hethmon acknowledged, was taken from scholarship and litigation efforts of Professor Kris W. Kobach, of the University of Missouri, Kansas City School of Law, and Senior Litigation Counsel to IRLI. Hethmon concentrated his testimony on three questions "First, does inherent state and local arrest authority extend to the so-called civil provisions? Second, has such authority been preempted by Congress? And third, do state and local police have the authority to question persons who have not been arrested about their immigration status?"
In answering the first question Hethmon explained to the committee:
Even though Congress has never authorized state police to make arrests for federal offenses without an arrest warrant, such arrests occur routinely. When an Arizona police officer witnesses a federal crime and makes an arrest, that officer is not acting pursuant to delegated federal power, but he is exercising the inherent power of this state to assist another sovereign. The Supreme Court has long recognized that state law controls the validity of such an arrest.
He further explained that the federal Circuit Courts, including the Ninth Circuit which includes Arizona, have reached the same conclusion.
On the second question of whether Congress has preempted this inherent authority, Hethmon walked through the three part test for federal preemption analysis explained by the U.S. Supreme Court in De Canas v. Bica. The test requires a reviewing court to look for (1) express preemption by congressional statement, (2) field preemption, where the federal regulatory scheme is so pervasive as to displace state authority entirely, or (3) conflict preemption, where compliance with both state and federal law is impossible or state law prevents the accomplishment of congressional objectives. Under all three tests, court review "starts with the assumption that the historic police powers of the States [are] not to be superseded ... unless that [is] the clear and manifest purpose of Congress."
In applying preemption analysis, Hethmon explained that there is a strong presumption against preemption, especially as Congress has explicitly welcomed state participation on immigration enforcement in cooperative agreements, known as 287(g) agreements, but Congress has also made it clear in 8 U.S.C. 1357(g)(10) that these agreements are not required for "any officer or employee of a State or political subdivision ... to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States."
On the flip side of the coin, Hethmon explained how federal law prohibits local governments form enacting "sanctuary policies" under 8 U.S.C. sections 1373 and 1644. Both Sections were passed in 1996, and were designed explicitly to counter local sanctuary policies. Section 1373 mandates that, "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
The hearing also included a number of witnesses who were victims of the criminal acts by illegal aliens who had skirted detection through the application of sanctuary policies. Chairman Pearce demonstrated through their testimony that these crimes could have been prevented had the illegal aliens not been afforded this unlawful protection.
According to The Arizona Capitol Times, testimony also included law enforcement officials who welcomed Chairman Pearce's focus on the subject. The paper reported that Phoenix Law Enforcement Association President Mark Spencer:
...testified about a poll of PLEA members that showed the majority support policies that would more effectively allow them to inquire about and investigate the immigration status of the people they come across in the line of duty. Eight of 10 members, he said, believed Phoenix Police Department policies were detrimental to the community and to law enforcement officers.
Spencer said Phoenix, which has earned a reputation as the kidnapping capital of the United States due to the activities of drug traffickers and illegal immigrant smugglers, experiences about one kidnapping per day. He recited survey comments from PLEA members who felt illegal immigrants committed a disproportionate amount of crime, from drunken driving offenses to murders.
New Jersey City Sanctioned Day Labor Center Closes
In a story closely related to sanctuary city policies, the Associated Press reported on May 14th that a Passaic, New Jersey sanctioned day labor center was closing due to poor economic conditions. The center was the idea of former Passaic Mayor Samuel Rivera who pushed for building the center. He also made space available for construction contractors to park in front of the center and instructed police not to issue loitering tickets to day laborers who used the center. Rivera has since been sentenced to prison for federal corruption charges. The current mayor, while stating he supports the center, will not dedicate any funds to keep it open.
Day labor centers that are sanctioned by cities or even ignored by local governments are examples of sanctuary policies that have gone past non-cooperation with federal authorities to encourage lawlessness by illegal aliens and scofflaw employers. If you have a day labor center in your community that seems to be sanctioned by the local government, contact IRLI for possible legal remedies to the situation.
Florida Legislature Passes Anti-Human Smuggling Bill
At the end of April the Florida Legislature passed HB123 which makes it a misdemeanor for a person to transport a person into the state from another country knowing the person is illegally entering the United States. According to Highlands Today, law enforcement sees the bill as another tool to broaden the scope of investigation, and will lead to better investigation of smugglers.
While the bill is good as far as it goes, we see this new bill as being too limited in scope. Arguably, the bill limits enforcement to smugglers who bring aliens in directly from another country, the substantive language stating, "A person who transports into this state an individual who the person knows, or should know, is illegally entering the United States from another country commits a misdemeanor of the first degree..."
A better alternative for state legislatures wanting to give law enforcement expanded tools for immigration investigation and enforcement would be to pass state versions of the federal laws that prohibit the transporting and/or harboring of illegal aliens. IRLI's model legislation is broader in its scope and only requires knowledge or reckless disregard of the fact that the alien is unlawfully present in the United States. As the article above points out, the Florida bill, if signed by Governor Crist, will not prohibit smugglers from bringing illegal aliens from neighboring states.
Last month we covered the problems that can occur when legislation that prohibits the employment of unauthorized aliens includes alternatives to employment verification other than E-Verify. One of the alternatives mentioned was the Social Security Number Verification System (SSNVS) operated by the Social Security Administration (SSA). To recap, the SSA restricts the use of SSNVS for employers to report FICA taxes and state or local Social Security taxes and to correct earnings records for employees. Legislation that uses the system to verify the legal work status of individuals is potentially problematic; however, its use should not be disregarded in fashioning state legislation.
States have a proper interest in seeing that employee's tax and differing state wage reporting accounts that use the Social Security Number for identification purposes, is accurate. Employers and employees also have an interest in ensuring that an employee's Social Security account is properly credited. While the SSNVS cannot be used to verify work authorization, IRLI believes that states can require its use, just as it may require E-Verify or provide safe harbors from prosecution for employers who use these programs However, the legislation must clearly state that the reason for its use is for wage reporting purposes. A potential benefit of this requirement is that SSNVS is used for all employees where E-Verify is used exclusively for newly hired employees. Potentially, employees who have used fraudulent identities could continue in employment if they were hired before passage of mandatory E-Verify. A notification that there is a mismatch using the SSNVS would alert an employer that something is amiss with an employee, and force the employer to investigate further to correct the situation.
If you re interested in using this tool in legislation, please fell fee to contact IRLI for drafting assistance to ensure that the legislation does not run afoul of federal law or privacy concerns.