The rhetoric from Washington about “immigration reform” has stopped — for now. Tempers have cooled from their peak of last spring and summer.
And the future of Arizona’s “Fair and Legal Employment Act,” the new state law that seeks to punish those who employ illegal immigrants, lies in the hands of the U.S. District Court at a hearing Wednesday in Phoenix.
So now would be a good time to take another look at the Arizona Legislature’s best effort to deal with illegal immigration, and consider what the new law might entail for the future.
It was no surprise that our Legislature was compelled earlier this year to involve itself in what is otherwise a federal issue. Washington has failed for decades to secure our nation’s borders and enforce a rational immigration policy, and the administration and the Congress made matters worse this year by ignoring America’s pleas to “secure the border first,” choosing instead to lecture us about “comprehensive immigration reform,” “pathways to citizenship,” and “touch-back provisions.”
In the face of this federal failure, it’s understandable that state lawmakers sought to eliminate that which often motivates people to illegally enter our nation in the first place — the prospect of gainful employment.
But good intentions are often sidetracked by unintended consequences. And a closer examination of the Fair and Legal Employment Act reveals that the law could be anything but “fair,” or “legal.”
If at this point you’re ready to label me an “amnesty advocate,” take a deep breath. And read this all the way through. And then read it a second and third time. This is serious stuff, and there is a lot weighing in the balance.
Arizona’s Fair and Legal Employment Act was signed in to law on July 2 by Gov. Janet Napolitano. Some 24 days later, on July 26, a U.S. District Court in Pennsylvania struck down a very similar law enacted on a municipal level in the city of Hazelton, Pa. The Hazelton law, called the Illegal Immigration Relief Act Ordinance, sought to prevent the employment of illegal immigrants within the city, just as Arizona’s law seeks to do statewide.
The court decision regarding the Hazelton law cites serious problems with the ordinance. Along with the legal and technical language that judges typically use, the ruling spells out quite clearly, in very plain language, why the new law is problematic.
One of the problems is that the Hazelton law mandates employers to do things that are in direct conflict with federal law. In a portion of the document, the judges write:
“Under the Hazelton ordinance, an employer must collect from the employee ‘identification papers’ and provide them to the Hazelton Code Enforcement Office. The Code Enforcement Office then verifies with the federal government whether the employee is an unauthorized worker. The primary conflict in this area is that under federal law, the employer has the responsibility to review the documents, and in the Hazelton Ordinance, the employer is required to present the documents to the Code Enforcement Office, which contacts the federal government to determine the status of the worker.”
Elsewhere in the court ruling, the judges point out that in following the directives of the city ordinance and terminating an employee believed to be “illegal,” Hazelton business owners could violate the rights granted to employees by U.S. federal law, stating:
“Thus, in direct conflict with (federal law), Hazelton seeks to force an employer to terminate an employee, where under federal law the employer is prohibited from terminating that employee. Additionally, under the Hazelton Ordinance, the only appeal right appears to be held by the employer …. Without providing any appeal rights to the employee, I.I.R.A. (the Hazelton ordinance) is in conflict with the federal law.”
In short, if a business owner in Hazelton were to attempt to follow the laws of the city, he could be found in violation of the laws of the country, and thus be subject to lawsuits and perhaps prosecution.
Earlier this summer, I wrote on these pages that business advocates who opposed our new statewide crackdown were being perceived as giving a “pass” to the employment of illegal immigrants. Politically speaking, this perception still exists. Yet despite the way things are publicly perceived right now, every Arizonan, business owner or not, should be concerned about our new law, because it could put business own- ers in a “Catch-22” every bit as badly as the Hazelton law might have done in Pennsylvania.
RISK OF LAWSUITS
Consider this very realistic, very plausible scenario. An Arizona business owner, in an effort to comply with the new state law, goes about the screening process to determine if a job applicant is “legal“ or “illegal.” Imagine this job applicant is a U.S. citizen, but for whatever reason (the applicant’s appearance, skin color, accent, etc.), the business owner is compelled to ask for verification of the applicant’s status, or simply chooses to not hire the applicant at all. In such a scenario, it isn’t difficult to imagine this job applicant claiming “discrimination based on race.” Thus, the business owner is placed in a position where she is at risk of being accused of violating federal employment law, all the while the business owner is merely seeking to comply with Arizona law, to avoid the revocation of her Arizona business license, and to simply stay out of legal trouble altogether.
The court ruling on the Hazelton ordinance addressed this issue, and contemplated the very “touchy,” very volatile issue of screening people for their legal status:
“Defendant (the city of Hazelton) seems to argue that the law is constitutional because it is aimed at illegal aliens who have no right to be in the United States. Defendant’s position fails to acknowledge that the law will affect more than illegal aliens. It will affect every employer, every employee who is challenged as an illegal alien, and every prospective employee, especially those who look, or act, as if they are foreign …”
This speaks directly to the plight of the Arizona business owner, as well. It is a very risky thing to ask personal questions of any prospective employee, especially one who may “look, or act, as if they are foreign.”
Thus, an Arizona business owner could be faced with a horrible dilemma: either comply with the new Arizona law and risk being sued for discrimination, or try to minimize the threat of discrimination claims while increasing the possibility that one of your employees is illegal, and thereby placing your Arizona business license at risk.
Consequently, if the Fair and Legal Employment Act is upheld in court, it could easily be viewed as the “Discrimination Lawyers’ Full Employment Act.” The tension this law would create between the state of Arizona and the federal government will in turn create enormous opportunity for more discrimination lawsuits. This is great news for lawyers, and bad news for other business owners.
I have previously discussed this phenomena of local governments seeking to prohibit the employing of illegal immigrants, both in the writing I do for a separate, national publication, and on talk radio nationwide. Whenever I raise concerns over these kinds of discrimination claims being recklessly made against business owners, I’m flooded with angry telephone calls and e-mail messages telling me that such claims of discrimination are frivolous and unfounded, and would never be upheld in court.
These responses miss the point. It doesn’t matter whether such a claim would be “upheld in court.“ An individual or family who owns a small business, a business so small that it doesn’t have its own legal department, staff attorney or human resources department, could quite literally be bankrupted while merely trying to stay out of court and defending against such a claim.
It’s obvious to see how an increased risk for discrimination lawsuits would damage the climate for private business ownership in Arizona, and have a devastating effect on our state’s economy. And even though the Fair And Legal Employment Act has not yet taken effect, it has sent shock waves through businesses concerned about its potentially serious penalties, unintended consequences and ambiguities.
Interestingly, attorneys around the state have already begun a bit of a cottage industry providing seminars about this new law to businesses, educating them on how to protect themselves from unjust claims, investigations and penalties.
At the same time, the possibility of this law being upheld in court has created uncertainty about our state’s business climate — and uncertainty is the worst possible market condition for prospective investors.
Arizona’s new employer sanctions law, should it be implemented, could hold business owners hostage to a no-win scenario wherein to comply with state law, one must risk being in violation of federal law, and thus be at risk for lawsuits and prosecution. Far from it’s intended purpose of punishing those who “knowingly” or “willingly” employ illegal immigrants, it could render it impossible for a business to be in compliance with both federal and state law at the same time, and to operate without the risk of litigation.
CHANGE IS NEEDED
Obviously, this law is in serious need of being amended. It is difficult to imagine that our former Attorney General-turned-Gov. Janet Napolitano did not realize the flaws before she signed the bill into law, although signing it allowed her the political benefit of appearing to be tough on illegal immigration. That’s smart politics, but it is not statesmanship.
Additionally, while it is understandable that Arizona’s Legislature wanted to do something about the very serious problem of illegal immigration, it is at the same time unconscionable to think that a Legislature led by the party of Barry Goldwater and Ronald Reagan would imperil entrepreneurs in this way. Either our legislators didn’t see how this state law could lead to conflict with federal law (while leaving the business owner stuck in the middle), or, despite their recognition of the conflict, they chose to pursue this course anyway, so as to appear “tough on immigration.”
Regardless, this law threatens to create the very sort of devastating, destructive governmental power that Reagan and Goldwater warned of, and fought against.
In the end, there is a lesson to be derived from both the Hazelton and Arizona laws, a lesson that is important for Washington. As much as the Congress and the Bush administration may have truly believed that their “comprehensive immigration reform” plan was viable, the fact is that our greatest problems with illegal immigration are because of federal law itself.
And this takes us full-circle back to Washington. That is where real “immigration reform” and “border enforcement” must begin.