IRLI filed an amicus brief in the Tenth Circuit on behalf of several Oklahoma state legislators, coordinated by former Senator Randy Terrill, as well as Immigration Reform for Oklahoma Now (IRON), a state immigration reform group headed by Carol Helms that worked frequently with FAIR and IRLI in the first decade of this century. The brief was in support of a motion by defendant Oklahoma Gov. Drew Edmonds for en banc review of the prior circuit panel opinion.
In 2007, the Oklahoma Legislature overwhelmingly passed House Bill (HB) 1804, the Oklahoma Taxpayer and Citizenship Protection Act of 2007. HB 1804 was a landmark bill that sought to alleviate the “economic hardship” in the State caused by “illegal immigration.” HB 1804, Sec. 2. HB 1804 also required state agencies to comply with federal law by verifying the eligibility of aliens seeking benefits and sought to stop the “harbor[ing] and shelter[ing]” of aliens through granting identification cards to them. Id.
On June 4, 2008, the District Court for the Western District of Oklahoma granted the state Chamber of Commerce and other business group plaintiffs a preliminary injunction against HB 1804 Sections 7(B), 7(C) and 9 of HB 1804. Section 7(B) required employers wanting to contract with the state to sign up for and use the Federal E-Verify system. Section 7(C) made it an unlawful discriminatory practice for an employer to fire a United States citizen or lawful permanent resident, while knowingly retaining an unauthorized alien. Section 9 required contractors to verify the work authorization of independent contractors consistent with the federal prohibition of knowingly contracting with illegal aliens or be required to withhold state income tax as applied to the compensation paid to such independent contractor.
Unchallenged provisions of HB 1804 required state agencies to comply with federal law by verifying eligibility of aliens seeking benefits. As a way of verifying eligibility of aliens and to stop the harboring of illegal aliens, the State would grant identification cards.
On appeal, the Tenth Circuit affirmed the district court’s ruling that Sections 7(C) and 9 were conflict preempted. The panel reversed the district court’s ruling that Section 7(B) was conflict preempted, but it did so in a disjointed opinion where one justice found no conflict preemption, another justice found conflict preemption, and a third justice believed the panel did not have jurisdiction to decide the issue.
The IRLI amicus brief addressed preemption issues that were not properly addressed by the Tenth Circuit panel. IRLI argued that the panel did not address the “facial challenge” burden of proof that required the plaintiffs to show that under no circumstance or application would the law be found constitutional, in particular the presumption against the federal government’s preemption of state law especially in light of the U.S. Supreme Court stating that the power to prohibit the employment of unauthorized aliens was within the police power of the states. De Canis v. Bica, 424 U.S. 351, 356 (1976). IRLI also argued that the district court’s finding that the inclusion of hiring of an unauthorized worker over an authorized worker constituted employer discrimination under Section 7(C) was a “sanction” and expressly preempted by 8 U.S.C. § 1324(h)(2) expressly conflicted with numerous other courts which have held that “compensatory relief does not come within the IRCA’s meaning of civil sanctions.” As to section 9, IRLI argued that there is no federal prohibition against verifying the lawful status of independent contractors, nor is there a mandate that employers verify such work authorization status, but the lack of such a mandate in federal law does not mean that Congress prohibits such verification. IRLI argued there was no “actual conflict” between Section 9 and 8 U.S.C. § 1324a(a)(4) because Section 9 was consistent with the purpose of federal law, to prevent employers from bypassing the federalprohibition on the employment of unauthorized aliens through contract work, and thus would not be conflict preempted in a facial challenge. However, rehearing en banc was denied on April 10, 2010.
After the Tenth Circuit’s ruling, the case was remanded to the district court, where it had been stayed pending the Supreme Court’s decision in Chamber of Commerce v. Whiting. The parties settled this case on December 19, 2012. The defendant then-Gov. Henry, who settled the case by not re-appealing in light of the Whiting favorable holdings, had been a political opponent of the Senators and HB 1804. IRLI’s arguments were thus never considered by the district or circuit courts.