State Immigration Laws Face Legal Doubts

It’s a tricky business when states and localities step into the traditional federal realm of cracking down on illegal immigration. A federal judge reinforced the point Thursday (July 26), when he threw out a Pennsylvania town’s penalties for hiring or renting to illegal immigrants.

“Whatever frustrations officials of the City of Hazleton may feel about the current state of federal immigration enforcement, the nature of the political system in the United States prohibits the city from enacting ordinances that disrupt a carefully drawn federal statutory scheme,” U.S. District Judge James M. Munley wrote in the decision.

The ruling could have a chilling effect on states and cities that, over the last two years, have grown frustrated with Congress’ failure to stop illegal border crossings and are trying to combat the surge of illegal workers themselves.

One of the next tests could be in Arizona, where employers are challenging the toughest employer sanction state law in the country. The new law could shutter businesses for hiring illegal immigrants.

Michael M. Hethmon, a lawyer who helped write several aggressive anti-immigration laws, said the decision in the Hazleton, Pa. case, if it stands on appeal, would leave little room for states and cities to address immigration.

Hethmon, who is general counsel for the Immigration Reform Law Institute, said Thursday the “sweeping” ruling also would discourage local and state governments from adopting new immigration-related laws until the legal questions are settled.

Michele Waslin, director of immigration policy research for the National Council of La Raza , an Hispanic advocacy group, said Thursday’s decision “sends the message that this type of irresponsible legislation is not going to be tolerated.”

States are trying various ways to get around a 1986 federal immigration law that forbids states from punishing businesses directly – with either fines or jail time for owners – for hiring illegal workers.

Starting in January, for example, Arizona companies caught twice knowingly hiring illegal immigrants will lose their business licenses.

The Arizona Employers for Immigration Reform attacked the law in federal court on July 13. The employers say the state is trying to usurp federal powers while leaving companies no way to defend themselves if they’re accused of hiring illegal workers.

But Arizona is one of a vanguard group of states – including Colorado, Georgia and Oklahoma – requiring certain employers to check on the legal status of its workers. The other three require state contractors to confirm their workers are legal. Idaho and North Carolina also verify the status of state government workers.

The states required affected employers to verify their new hires with the U.S. Department of Homeland Security, which operates a Web-based program to check out employees. But Oklahoma didn’t stop there. It also enacted other provisions to give employers even more incentive to make sure their workers are legal.

The Sooner State is giving American citizens fired from a job the right to sue their former employer if an illegal immigrant works for the company. The law applies to all companies in Oklahoma, not just those with government contracts.

Another provision of Oklahoma’s immigration law cracks down on businesses that use contractors and subcontractors to avoid employee verification rules. Under the law, companies must withhold Oklahoma state income tax out of payment to their contractors, unless the contractors can prove their workers are legal.

Oklahoma state Rep. Randy Terrill (R), a chief proponent the state’s new immigration law, said states are well within their rights to use new tools to try to stem illegal immigration.

“States are a separate sovereign in our federal system. We have as much of a right and a responsibility to provide for internal domestic security as the federal government should have for our international borders,” he said.

But another GOP lawmaker, state Rep. Shane Jett, warned the bill would send business away from the Sooner State and cause lasting damage with the state’s Hispanic community. He said Oklahoma’s political climate has shifted markedly against immigrants.

“Unfortunately, sound bytes won over sound policy,” he said.

Besides legal pitfalls, practical concerns remain about employee verification laws.

For much of its 10-year life, problems such as outdated information and inaccurate entries dogged the federal government’s employee verification system, called the Basic Pilot Program.

Tyler Moran, a policy analyst for the National Immigration Law Center, which supports immigrant rights, predicted the increased use of the system would lead to lots of problems for U.S. citizens because of mismatches. She also questioned whether the federal government would monitor businesses to prevent identity theft.

In the last year, the Bush administration pumped $114 million into upgrading the program and heavily promoted its use, including a pitch by the president himself at a Virginia Dunkin Donuts shop last summer. Now, DHS reports more than 18,000 employers with 79,000 work sites use it.

While signing the Arizona law, Gov. Janet Napolitano (D) questioned whether the federal program could handle requests from as many as 150,000 additional Arizona businesses.

Gerri Ratliff, chief of the U.S. Citizenship and Immigration Service’s verification division, told Stateline.org the system could handle the extra work. She said this year, it will field up to 14 million requests about eligibility for benefits and work, but the system can handle as many as 25 million queries a year without slowing down.