Challenge to hiring law dealt a setback
Federal judge suggests suit by Ariz. firms may be flawed
By Howard Fischer
Capitol Media Services
Tucson, Arizona | Published: 11.15.2007
PHOENIX Arizona businesses may not be able to challenge a new law penalizing the hiring of illegal immigrants unless at least one of the companies can show some actual harm from the statute perhaps by being charged with breaking it.
At a hearing Wednesday, attorneys for various companies and business groups argued to U.S. District Judge Neil Wake that only the federal government can punish companies that employ people in this country illegally. They said that makes the new state law to suspend or revoke the licenses of such businesses illegal.
But Wake told them that even if he were to accept their arguments something he has not indicated he does only those who can show an immediate threat of prosecution have standing to ask him to void a state law. And he noted none of the plaintiffs in the lawsuit admits to hiring illegal entrants.
The judge also suggested that the entire lawsuit may be flawed.
He pointed out that the legal papers ask him to block Gov. Janet Napolitano and Attorney General Terry Goddard from enforcing the statute. But Wake noted that the law gives the actual job of prosecuting errant employers to the 15 individual county attorneys.
All that could mean Wake, who has promised to rule before the law takes effect on Jan. 1, might never answer the central question of whether Arizona can enact laws to ensure businesses hire only citizens and legal U.S. residents.
The law, approved by the Legislature earlier this year and signed by Napolitano, allows a judge to suspend a firm's ability to do business for up to 10 days if it is found to have knowingly hired an illegal immigrant. A second offense within three years results in permanent revocation of all state licenses and permits.
Attorney David Selden, whose clients include the Arizona Contractors Association, the Arizona Chamber of Commerce and Industry, the Arizona Farm Bureau Federation and the Arizona Restaurant and Hospitality Association, said Congress specifically barred states from imposing civil or criminal penalties on companies that hire illegal entrants.
But Wake pointed out that a 1986 federal law permits states to enact “licensing or similar laws.”
“Doesn't that pretty much say there is no pre-emption for state licensing-sanctions laws?” the judge asked.
Selden, however, said that exception allows states to deny or revoke licenses only after a federal judge someone empowered to determine who is legally in this country decides a company broke the law. Wake scoffed at that explanation.
“You're asking the court to add words to the statute that are not there,” he said.
And the judge seemed no more impressed by Selden's argument that Congress would have barred states from imposing fines against offending firms but instead let them impose a “death penalty” by putting them out of business.
“You're asking me to tell Congress I'm smarter than them, (that) this was a dumb idea,” Wake said. Wake said federal legislation is always a compromise, and “Congress can draw the line (about who gets to enforce what) wherever it sees fit.”
Jonathan Weissglass, who represents Chicanos por la Causa, a Hispanic activist group that also sued, said companies already are being harmed because the law also requires them to check the legal status of all new employees through the federal government's E-Verify program. He said that means not just having a computer and Internet access but the time involved in training people on the system and running the checks.
But state Solicitor General Mary O'Grady pointed out that there is no punishment in the law for firms that refuse to sign up for the E-Verify system.
Weissglass countered that the penalties come elsewhere. He said companies that refuse to use the federal database will be unable to sign affidavits which are required to get some licenses and contracts stating that they are in compliance with all state laws.
He also argued that the law still contains an element of illegal government coercion because companies that run the computer checks are entitled to a “rebuttable presumption” that they did not knowingly hire illegal immigrants. He said businesses, fearing loss of licenses, will feel compelled to use the E-Verify program.