State and Local Legislation Bulletin
Carl Little, Esq., Editor · Issue 26, July 2009
In this Issue:
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IRLI Defends Local Law Enforcement in First Circuit Court of Appeals
IRLI, representing the National Fraternal Order of Police, has filed an amicus curiae (friend of the court) brief with the First Circuit Court of Appeals in the case Estrada v. Rhode Island. In this case, Rhode Island State Trooper Thomas Chabot was sued for allegedly violating the Fourth and Fourteenth Amendment rights of twelve individuals. These alleged violations occurred after the trooper lawfully stopped a van traveling along Interstate Route 95 on July 11, 2006. They claim that Chabot impermissibly prolonged an otherwise constitutional routine traffic stop, by querying them as to their immigration status, contacting federal immigration authorities to verify his reasonable suspicion that the occupants were illegal aliens, and escorting the van and all its occupants to the nearest office of Immigration and Customs Enforcement ("ICE") in Providence, at that agency's request.
Citing a long line of legal precedents, IRLI argued that:
- Inquiry into the immigration status of vehicle occupants during a lawful traffic stop does not implicate the Fourth Amendment.
- When several of the occupants presented foreign consular ID cards without alien registration documents, the trooper had immediate reasonable suspicion to "shift the focus" of the stop from a traffic violation to violations of federal immigration law.
The federal district court for Rhode Island dismissed all the claims against the Rhode Island state police, but the ACLU has appealed. The case, if decided contrary to IRLI's argument, could set a dangerous precedent that could severely tie the hands of local law enforcement in New England and beyond. State and local police are the most effective law enforcement personnel available to combat the unauthorized presence of illegal aliens in the United States, and often have direct knowledge of local activity by illegal aliens, including smuggling, harboring, controlled substance violations, and unauthorized employment. The U.S. Code is fashioned in such a way as to encourage cooperative enforcement between local, state and federal police agents. Open borders interests are intent on attacking and disabling this effective tool at every opportunity. IRLI has identified the defense of local cooperative enforcement, consistent with respect for constitutional rights, to be a top priority on its agenda of citizen advocacy. Copies of the amicus brief are available from the IRLI office in Washington, D.C.
Cheap Labor Lobby Petitions to Challenge Arizona Law in U.S. Supreme Court
On July 24th the U.S. Chamber of Commerce along with the American Civil Liberties Union (ACLU) and a coalition of cheap labor and immigrant interest groups filed a petition for certiorari with the U.S. Supreme Court asking them to overturn the Ninth Circuit's favorable ruling in Chicanos Por LaCausa v. Napolitano. In that case the Ninth Circuit found that the Legal Arizona Worker's Act was not preempted by federal law. This law, among other things, prohibits the hiring of illegal aliens and requires Arizona employers to use E-Verify. Noncompliance with the law could result terminate the business licenses of those employers who hire illegal aliens.
The Chamber argues, in their brief, that state laws governing immigration issues create a "crazy-quilt" patchwork system of laws around the country that is unfair to both employers and employees. Additionally, the petition claims that federal law completely preempts such state and local laws.
The Chamber of Commerce and the ACLU argue that state and local governments cannot legislate in the area of employment enforcement. The legal term for this argument is "field preemption." However this claim that only a small cadre of federal agents can participate in the enforcement of citizenship and immigration laws is contradicted by the plain language of the federal code, which expressly authorized a system of cooperative federalism that describes the areas in which states and localities may act. It is this system that creates an amazingly uniform system of state and local laws. Neither the Supreme Court nor any federal appeals court has ever agreed with the Chamber's theory.
The petition also recognized that laws such as Arizona's are very popular with the electorate, claiming, "In the first three months of 2009 alone, over 1,000 immigration-related bills and resolutions were introduced in all 50 states. At least 150 of these bills related specifically to employment, and 40 such bills have been enacted in 28 states since 2007." Such a statement is an ironic testament to the work of IRLI with legislators all over the country, for whom IRLI's model legislation has become an important baseline for state legislatures. One of IRLI's main charitable purposes is to advise the citizenry on the proper form for effective laws that will not conflict with the federal code. The model laws are available here.
Key Plaintiff in Hazleton, Penn. Case Exposed as a Slumlord
According to the Scranton, Penn. Standard Speaker in a July 24 news report, the lead plaintiff in the lawsuit filed against Hazleton, Penn., Lozano, et al. vs. Hazleton, is demonstrating himself to be less than a model landlord. Pedro Lozano sued the city to stop the Illegal Immigration Relief Act which prohibited landlords from knowingly renting their properties to illegal aliens. Lozano claimed in court that he lost prospective tenants because of an alleged "climate of fear" provoked by the ordinance, but current revelations of the living conditions in Lozano's building have caused Mayor Lou Barletta to question this claim.
After a July 17 stabbing at the property, the city condemned it, deeming it, "unsafe for human occupancy or use." According to Barletta the city's health and code enforcement department found two feet of raw sewage in the basement and a resident told the paper that three men were living in a three-car garage at the rear of the property, while another seven occupied three two-bedroom units, and up to 15 transients were staying in the building during the cold months.
At the trial, Lozano claimed that several potential tenants did not rent apartments in his property after the Hazleton IIRA was enacted. But as the Mayor told the paper, "My thought is maybe that's why some of the tenants left — not the ordinance."
Texas Attorney General Comments on In-State Tuition for Illegal Aliens
In a ruling that was a year in the making, Texas Attorney General Gregg Abbott has concluded in an opinion letter requested by Rep. Leo Berman, that it is unclear whether a Texas state law that allows in-state tuition for illegal aliens would survive a federal court challenge. The opinion acknowledges that a similar law in California was found by the California state appellate court to conflict with 8 U.S.C. 1623 which states:
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.
While the opinion itself was not conclusive, Rep. Leo Berman told the El Paso Times that in a telephone conversation with the Attorney General, Mr. Abbott explained that the opinion meant, "If Texas courts follow the law, in-state tuition for illegal aliens is not allowed in Texas."
Immigration reform groups are now weighing the possibility of challenging the Texas law in court.
Policymakers in Arizona Consider a New Ballot Initiative
IRLI has learned that the frustration with the lack of progress for popular immigration reform measures in the Arizona legislature has prompted several influential legislators and immigration reform leaders to begin planning to place an immigration enforcement ballot initiative on Arizona's 2010 election ballot.
In the 2009 legislative session, State Senator Russell Pearce introduced several measures that passed the Senate but failed to pass the House. IRLI General Counsel Michael Hethmon was called upon to testify before Sen. Pearce's committee about sanctuary policies earlier this year. The proposed ballot initiative will apparently integrate several of the more significant 2009 bills into an omnibus cooperative enforcement measure for the electorate's consideration. Look for more details about the content of this new ballot initiative in future Legislative Bulletins.
One of the more popular legislative proposals we see being introduced in both state and local legislative bodies is a provision requiring E-Verify for any employer wanting to contract with the government. While such legislation seems to be a simple undertaking, several legal and policy matters should be considered when drafting such measures.
First, the entity drafting such measures must take into account the scope of their authority to enforce the provision. State authority to enforce rules beyond contract provisions will normally not extend past their borders. Additionally, if a state merely requires in-state contractors to comply but opens up bids to out of state contractors, there is a potential risk of creating an unfair advantage for out-of-state bidders who may hire illegal labor to produce the goods or services the state is wishing to procure. Second, ensuring that contractors do not avoid compliance by hiring subcontractor or independent agents can also be a tricky matter.
In order to avoid pitfalls associated with drafting this legislation, we recommend that legislation include exceptions to the general requirement requiring E-Verify for:
- Off the shelf items, or those items that are made available to the government in substantially the same form that they are sold to the general public.
- Food, and agricultural products that are shipped as bulk cargo.
- Subcontracts that only provide supplies.
Additionally, the legislation should include a requirement that general contractors place in their contracts with subcontractors a "flow-down" requirement that the subcontractor will also use E-Verify for its newly hired employees. In return for including this provision in the contract with subcontractors, the legislation should ensure that the contractor will not be held directly liable should a subcontractor violate the law and the terms of the contract without the primary contractor's knowledge.
If your community would like assistance in drafting such legislation, IRLI can offer the technical assistance you need to ensure that the legislation complies with federal law, and is crafted to treat public contractors fairly in a competitive market.