Metropolitan News-Enterprise


Thursday, September 18, 2008


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Ninth Circuit Rejects Challenge to Arizona Immigration Law


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld the constitutionality of an Arizona law requiring employers to verify the employment status of their workers and penalizing those who knowingly hire illegal aliens.

Affirming the decision of U.S. District Court Judge Neil V. Wake of the District of Arizona, the three-judge panel held that the Legal Arizona Workers Act is not preempted by federal immigration law and does not violate due process.

Various business and civil-rights organizations brought suit against the 15 county attorneys of the state of Arizona, and the  governor, attorney general, registrar of contractors, and director of the state Department of Revenue, challenging the state law, which was enacted last year and became effective in January.

It authorizes the state court to suspend or revoke the business licenses of employers who knowingly hire “unauthorized aliens,” as defined under federal law, and mandates that employers utilize an Internet-based system known as E-Verify, established by the U.S. Department of Justice, to confirm a new employee’s eligibility for employment.

Preemption Argued

The plaintiffs contended that the state act was expressly and impliedly preempted by the federal Immigration Reform and Control Act and the Illegal Immigration Reform and Immigrant Responsibility Act.

They also alleged that the Arizona law violated employers’ rights to due process by denying them an opportunity to challenge the federal determination of the work-authorization status of their employees before sanctions are imposed.

Writing for the appellate court, Judge Mary M. Schroeder explained that the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, and so an assumption of non-preemption applied to the Arizona law.

IRCA only preempts state laws imposing civil or criminal sanctions “other than through licensing and similar laws,” Schroeder noted, and its legislative history stated that it was not intended to preempt state “‘fitness to do business laws.’”

She interpreted the Arizona law as conditioning an employer’s “‘fitness to do business’” on hiring documented workers. Because the law merely imposed conditions on state licenses to do business, Schroeder reasoned, it is a “licensing” measure and falls within the IRCA savings clause.

Verification System

Further, Schroeder wrote, even though Congress did not make participation in E-Verify mandatory the legislative history of the acts creating and expanding the program indicated Congress “plainly envisioned and endorsed an increase in its usage,” which was consistent with the Arizona law.

Schroeder also maintained that the state law, on its face, did not violate due process because it provided employers with an opportunity to dispute whether an employee was authorized to work before sanctions can be imposed.

Noting that the law had not yet been enforced against any employer, she cautioned that the law was open to future challenges “[i]f and when the statute is enforced” because it was only being upheld in this instance “against a blank factual background of enforcement and outside the context of any particular case.”

Judge N. Randy Smith and Senior U.S. Circuit Judge John M. Walker, Jr. of the Second U.S. Circuit of Appeals, sitting by designation, joined Schroeder in her opinion.

Republican state Rep. Russell Pearce of Mesa, the author of the law, said the ruling is a big win for the movement to get state and local governments to crack down on illegal immigration.

“Locals are just as responsible for the crisis in America in this invasion (of illegal immigrants) as the federal government,” Pearce told The Associated Press.

Problems Predicted

Jonathan Weissglass, an attorney for the groups challenging the law, said they may seek en banc or U.S. Supreme Court review. He said the law and the ruling could create problems for employers who have operations in more than one state because states could have different sets of hiring rules.

“What the Ninth Circuit has allowed is everyone can enact its own laws regarding immigrant employment, which would create chaos,” Weissglass told AP.

It’s unclear whether the business groups that challenged the law will seek an appeal. Two lawyers representing the groups were unavailable for comment because they were out of the country.

The case is Chicanos Por La Causa, Inc. v. Napolitano, 07-17272


Copyright 2008, Metropolitan News Company