Legislation

FAIR Legislative Update May 31, 2011


Supreme Court Upholds Arizona’s E-Verify Law

In a landmark decision that has broad implications for immigration enforcement at the state level, the United States Supreme Court Thursday upheld the Arizona Legal Workers Act. Passed in 2007, the Act has two major components: (1) it requires Arizona employers to use the federal E-Verify system; and (2) it allows Arizona to suspend and/or revoke the business licenses of employers who knowingly hire illegal aliens. The Chamber of Commerce filed a lawsuit in 2007 seeking to strike down the Arizona law, arguing that both provisions were preempted by federal law.  However, in Thursday’s 5-3 decision in Chamber of Commerce v. Whiting, 563 U.S. __ (2011), the Supreme Court rejected each one of the Chamber’s arguments and held that Arizona’s law is constitutional. 

In upholding the Arizona Legal Workers Act’s mandatory E-Verify provision, the Supreme Court rejected all of the Chamber’s arguments against it. The Chamber first argued that states could not mandate E-Verify because Congress chose to make the system voluntary.  The Supreme Court rejected that argument and held that while federal law prohibits Homeland Security from making E-Verify mandatory, nothing prohibits the states from doing so. The Chamber also argued that if every state made E-Verify mandatory, it would “drain on federal resources and overwhelm the federal system.”  The Supreme Court also rejected that argument, questioning its “legal significance” and noting that the Department of Homeland Security disagreed with that “factual premise.”   Finally, the Supreme Court rejected the Chamber’s claims that E-Verify was unreliable, stating that the program is “the best means available to determine the employment eligibility of new hires.”  The Court then concluded that Arizona’s use of E-Verify does not conflict with the federal immigration enforcement scheme.  Arizona’s requirement to use E-Verify, the Court wrote, “is entirely consistent with the federal law. And the consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law.” 

The Supreme Court also upheld the Arizona licensing provision, which allows the state to suspend and/or revoke the business licenses of employers who knowingly hire illegal aliens. The Chamber of Commerce argued that a specific provision in the 1986 Immigration Reform and Control Act (IRCA) preempts the Arizona licensing measure.  That provision reads: “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ … unauthorized aliens.”  (8 U.S.C. §1324a(a)(1)(A); INA §274A(h)(2)(emphasis added))   

The Chamber argued that while Arizona’s law purports to be a licensing scheme, the definition of “license” is so broad, there is virtually nothing left for INA §274A(h)(2) to preempt.  The Court rejected this argument, noting that Arizona’s definition of a “license” was similar to the federal definition and even matched the definition in Webster’s Dictionary. The Court concluded that Arizona’s licensing law “falls well within the confines of the authority Congress chose to leave to the States….”  The Chamber then argued that the Arizona law was not really a licensing scheme because it provides only for the revocation of licenses, not the issuance of them.  The Supreme Court flatly rejected this argument, calling it “contrary to common sense” with “no basis in law, fact, or logic….”

Taking a slightly different angle, the Chamber then argued that the Arizona licensing measure was preempted because it conflicts with the federal immigration system, a similar argument that the Chamber made with respect to the mandatory E-Verify provision.  More specifically, the Chamber argued that Congress intended immigration enforcement, with respect to employers, to be exclusive to federal agencies and that it specifically designed the 1986 law (IRCA) to strike a balance between differing interests and thus, any state enforcement system is inherently prohibited.  Again, the Court rejected both arguments. It reasoned that the express language allowing states to use licensing laws to impose sanctions on employers who hire illegal aliens necessarily meant that Congress did not intend the federal enforcement scheme to be exclusive. Moreover, the Court explained, “Arizona went the extra mile in ensuring that its law closely tracks IRCA’s provision in all material respects.”

Finally, the Chamber argued that Arizona’s licensing provision conflicted with the balance Congress intended to strike between differing interests.  However, the Court found that granting power to the states was part of that balance Congress sought. It wrote: “As with any piece of legislation, Congress did indeed seek to strike a balance among a variety of interests when it enacted IRCA.  Part of that balance, however, involved allocating authority between the Federal Government and the States. The principle that Congress adopted in doing so was not that the Federal Government can impose large sanctions, and the States only small ones. IRCA instead preserved state authority over a particular category of sanctions—those imposed “through licensing and similar laws.”

The Supreme Court’s decision in Whiting was a complete victory for true immigration reformers and a serious blow to the Chamber of Commerce, which has long been working to thwart meaningful immigration enforcement. However, the Chamber of Commerce was not the only organization trying to derail the Arizona Legal Workers Act. Dozens and dozens of big business organizations interested in cheap labor joined the Chamber as plaintiffs or supported its effort through amicus (“friend of the court”) briefs. (See Brief for Petitioners, filed Sept. 1, 2010; Brief of Business Organizations, filed Sept. 8, 2010)   Moreover, numerous open borders groups filed amicus briefs in support of the Chamber’s lawsuit. These included the American Immigration Lawyers Association (AILA); the American Civil Liberties Union (ACLU); the American Immigration Council (AIC); the Anti-Defamation League (ADL); the League of United Latin American Citizens (LULAC); National Council of La Raza; Southern Poverty Law Center (SPLC); and Service Employees’ International Union (SEIU). (See SCOTUS Blog, Chamber of Commerce v. Whiting)

Even President Obama’s Justice Department filed a brief in support of the Chamber’s lawsuit. (See FAIR’s Legislative Update, June 7, 2010) In the brief filed with the Supreme Court, the Solicitor General argued that the lower courts were wrong to uphold the Arizona Legal Workers Act because federal immigration law expressly preempts any state law imposing sanctions on employers hiring illegal aliens. Like the Chamber, the Solicitor General argued that this is not a licensing law, but “a statute that prohibits the hiring of unauthorized aliens and uses suspension and revocation of all state-issued licenses as its ultimate sanction.”  (Solicitor General's Amicus Curiae Brief, p. 10).

FAIR, which helped shape the Arizona Legal Workers Act and defended it against the Chamber’s 2009 attempt to gut it through a ballot initiative, hailed the Court’s decision.   FAIR President Dan Stein said, "[Thursday’s] decision once and for all clarifies that states may require employers to use E-Verify and allows them to sanction employers if they knowingly hire illegal aliens. With this opinion, the Supreme Court has dealt a game-changing blow to special interests that have misused federal preemption claims to impede meaningful immigration enforcement at the local level."   All eyes are now waiting to see whether Congress moves forward on mandatory E-Verify legislation, or whether the states use the Whiting decision to forge ahead with mandatory state E-Verify laws.

House Immigration Subcommittee Holds Hearing on Bill to Keep Criminal Aliens Behind Bars

The House Subcommittee on Immigration Policy and Enforcement held a hearing last week to debate Judiciary Chairman Rep. Lamar Smith’s (R-TX) new bill H.R. 1932, the “Keep Our Communities Safe Act.” H.R. 1932 grants the Secretary of Homeland Security (DHS) the authority to detain dangerous aliens who have been ordered deported, but cannot be removed.  “Just because a criminal immigrant cannot be returned to their home country does not mean they should be freed into our communities.  Dangerous criminal immigrants need to be detained,” Chairman Smith asserted in his opening remarks at the hearing. (Chairman Smith Press Release, May 24, 2011)    

Chairman Smith introduced H.R. 1932 to cure the detrimental impact of Zadvydas v. Davis, a 2001 Supreme Court case that addressed how long the government may detain an alien while seeking to remove him.  (533 U.S. 678 (2001))  At issue in Zadvydas was a federal statute that authorized the Attorney General, under certain circumstances, to detain an alien ordered removed beyond the 90-day period authorized by statute.  (Id. at 682; See 8 U.S.C. § 1231(a)(6)(1994 ed., Supp. V))  Because the statute was silent as to how long the Attorney General could detain an alien, the Court ruled that for those who legally entered the U.S., the government may not detain an alien longer than six months (after the 90-day removal period has expired) if removal is not “reasonably foreseeable.” (Id. at 699)  The Supreme Court later expanded the holding of Zadvydas to aliens who entered the country illegally. (Clark v. Martinez, 543 U.S. 371, 378 (2005))   Thus, the government must now release all aliens, including criminal aliens, from detention six months after their 90-day removal period has expired if a court determines that removal of the alien is not reasonably foreseeable.

Since the Supreme Court’s decision in Zadvydas, thousands of criminal aliens have been released into the U.S. general population. At last week’s hearing, Thomas Dupree, Jr., a former Principal Deputy Assistant U.S. Attorney General, told the Immigration Subcommittee that the consequence of Zadvydas is that “the government is compelled to release—into our communities—murderers, child molesters and other predators who pose a clear and direct threat to public safety and national security.” (Submitted Testimony of Thomas Dupree, Jr., pg. 2, May 24, 2011)   Dupree described a study revealing that “in the two months following Zadvydas, 829 criminal aliens were released into the United States, and thousands more were released in the years that followed.” (Id. at 7)

H.R. 1932 seeks to cure Zadvydas by authorizing Homeland Security, under certain circumstances, to detain criminal aliens longer than the six month period prescribed by the U.S. Supreme Court.  These circumstances are limited to instances where:

  • The alien will be removed in the reasonably foreseeable future;
  • The alien would be removed but for the alien’s failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary’s efforts to establish to carry out the removal order;
  •  The alien has a highly contagious disease that poses a threat to public safety;
  • Release of the alien is likely to have serious adverse foreign policy consequences;
  • Release of the alien would threaten national security; or
  • Release of the alien would threaten the safety of the community and either the alien has been convicted of one or more aggravated felonies or has committed a crime of violence.

(H.R. 1932 § 2(a)(6)(B)(ii); see also Chairman Smith Press Release, May 24, 2011) H.R. 1932 requires Homeland Security to renew the period of detention every six-months, and detained aliens may seek judicial review once administrative remedies are exhausted. (H.R. 1932 § 2(a)(6)(C); (H.R. 1932 § 2(a)(6)(E))

During the hearing, Mr. Dupree praised H.R. 1932, stating “The proposed legislation will protect the American people by giving the Department of Homeland Security and the Department of Justice the legal tools they need to keep these dangerous predators off our streets.” Douglas Baker, the Chief of Police of the Fort Myers, Florida Police Department, who also testified before the Subcommittee, similarly praised the legislation: “I applaud House Judiciary Committee Chairman Lamar Smith for addressing this ruling and the steps he is taking to correct this injustice … We have a responsibility to our citizens, legal residents, visitors, and law enforcement personnel to ensure that these dangerous criminal aliens are not allowed to reenter into communities within the United States of America.  Deportation or detention must be adhered to rather than allowing them to go free.” (Submitted Testimony of Douglas Baker, pg. 3, May 24, 2011)

Senator Rubio Holds His Ground against Amnesty

Senator Marco Rubio (R-FL) is standing firm against the DREAM Act and other amnesty legislation for illegal aliens.  (See Politico, May 23, 2011)  After Democrats reintroduced the DREAM Act this month, Rubio told the Spanish-language network, Telemundo, he would vote against it.  (Id.)  Senator Rubio then reiterated his opposition to the DREAM Act in an interview with Politico interview last week, saying that “we need an immigration system that works in order for America to grow and prosper economically.  But we have to have laws.  We have to have a legal immigration system.”  (Id.) 

The Florida Senator is taking now taking heat from amnesty advocates who were hoping Rubio would renege on his support for pro-enforcement policies.  Jorge Mursuli, a Cuban immigrant and executive director of a Florida Hispanic civic-engagement group said Senator Rubio’s continued support for immigration enforcement created a treasonous “Benedict Arnold feeling.”  (Id.)   Frank Sharry, director of the pro-amnesty group America’s Voice, decried Senator Rubio’s continued opposition to amnesty. “To be against comprehensive immigration reform and a path to citizenship and against the DREAM Act defines you in the Latino immigrant community as a hard-liner and an enemy of the community,” said Sharry.  (Id.)  And, Hector Luis Alamo, Jr., a freelance writer for Hispanically Speaking News last week wrote:  “Senator Rubio might look Latino and have a Latino-sounding name, but his recent political alignment further to the right shows that he is not pro-Latino.” (Hispanically Speaking News, May 27, 2011)

Those who know Rubio, however, respect his consistent stance on immigration.  “For people to fundamentally expect somebody, because of their ethnic background, to act one way or other, is wrong,” Senator Jeff Sessions (R-AL) stated.  (Id.)   Few Members of Congress, said Sessions, seek to serve the national interest more than Senator Rubio.  (Id.)

New Method of Transporting Criminal Funds across Borders

The Washington Post last week reported that criminal organizations are increasingly using prepaid cards to transport illicit funds and bring illegal activities across America’s borders.  (The Washington Post, May 24, 2011)  John Tobon, a senior agent with U.S. Immigration and Customs Enforcement (ICE) said that in the past year, the use of prepaid cards has “become the preferred means of paying couriers who transport illegal drugs across the U.S.”  (Id.)  U.S. officials estimate that over $20 billion in drug money crosses from the U.S. to Mexico each year.  (Id.) 

Drug cartels are choosing pre-paid cards over cash for several reasons.  Crossing the border with more than $10,000 in cash requires an individual to declare the money.  (U.S. Customs and Border Protection Declaration Form 6059B) But pre-paid cards, which look just like debit and credit cards, are legally exempt from declaration when crossing the border.  (The Washington Post, May 24, 2011)  The cards can be loaded up with money anywhere, then taken south and cashed out for local currency.  (Id.)   “Law enforcement loses lives all over the world trying to keep [major criminals] unbanked, and these prepaid cards are offering them a great alternative to sneak into our financial system,” Tobon said.  (Id.)  

Money has repeatedly been emphasized as the key to stopping the Mexican drug cartels, whose increasing violence is terrorizing the U.S. southwestern border.  John Morton, Director of ICE, remarked that “simply arresting people won't be a full solution.  We have to completely undermine the organizations as businesses, and to do this we have to identify, seize and forfeit their profits."  (Los Angeles Times, June 3, 2010)  One of the first cases where these cards were discovered by law enforcement involved a Dallas-based company which provided cards to Columbian drug traffickers to move $7 million across the border in 2006, all within three months.  (The Washington Post, May 24, 2011)  Because the pre-paid cards do not require identification as bank accounts do, they are hard to catch and even harder for law enforcement officials to track down. 

Earlier this year, Senators Dianne Feinstein (D-CA), Chuck Grassley (R-IA), and Sheldon Whitehouse (D-RI) wrote Secretary of the Treasury Tim Geithner to urge him to crack down on pre-paid cards.  (United States Senate Caucus on International Narcotics Control)  Senator Feinstein expressly encouraged the implementation of regulations which would make the pre-paid cards subject to border-crossing reporting requirements.  (Id.)  The Senators were concerned that such regulations have not yet been enacted, given that they were imposed by Congress in Section 503 the Credit Card Accountability Responsibility and Disclosure Act of 2009. (P.L. 111-24) The Senators’ letter threatened Secretary Geithner with their belief “that a rule making prepaid access, including stored value cards, subject to cross-border reporting requirements must be expeditiously proposed and finalized. Absent a renewed effort from the Department to propose and finalize a cross-border reporting requirement for prepaid access programs, including stored value, Congress will have to take action via the legislative process.”  (United States Senate Caucus on International Narcotics Control)

Napolitano Extends Temporary Protected Status for Haitians

Homeland Security (DHS) Secretary Janet Napolitano this month extended Temporary Protected Status (TPS) for Haitian nationals living in the United States.  (DHS News Release, May 17, 2011)  TPS is a provision of the Immigration and Nationality Act (INA) under which the U.S. government may grant aliens (legal or illegal) authority to remain living and working in the U.S. temporarily if “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”  (INA § 244(b)(1)(C)) These conditions include earthquakes and other natural disasters resulting in a disruption of living conditions in the area.  (INA § 244(B)(1)(B)

When Secretary Napolitano originally granted TPS to Haitian nationals, she was clear that it was only to apply to Haitian individuals already residing in the U.S. at the time of the earthquake.  She reiterated that “those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.”  (DHS News Release, Jan. 15, 2010)  The designation was originally issued to last for 18 months, at which time Haitian aliens would be required to return to Haiti.  (Id.

Despite these assertions, the Secretary recently extended TPS for Haitian nationals living in the U.S. (DHS News Release, May 17, 2011; See also INA § 244 (b)(3)(C))  But more concerning, the Secretary backtracked on her previous assertions and expanded the TPS designation to cover Haitians who came to the U.S. after the earthquake.   (DHS News Release, May 17, 2011)  Rather than just allowing for those who were in the U.S. at the time of the earthquake to remain, the Secretary re-designated Haiti as eligible for TPS, “meaning that eligible Haitian nationals who have continuously resided in the United States since Jan. 12, 2011, will also be able to obtain TPS through Jan. 22, 2013.”  (Id.)   Although the press release warns that this designation will not be extended it again, the 2010 press release made the same promise.  This action creates bad precedent for immigration policy, in that while Homeland Security as often extended the period of TPS for 12-18 months, there has never before been a re-designation for persons who came into the country after the event that led to the TPS declaration.

DHS reported that currently, approximately 48,000 Haitian nationals with TPS reside in the United States.  (DHS News Release, May 17, 2011)  This number also does not include the increase that will come with Napolitano’s latest announcement, as the re-designation does not take effect until July 23, 2011.  (Id.)   

Rohrabacher Seeks to End Health Care Subsidies for Illegal Aliens

This month Rep. Dana Rohrabacher (R-CA) reintroduced H.R. 1822, the “No Health Care Subsidies for Illegal Aliens Act,” to prevent illegal aliens from receiving health insurance subsidies under the new health care law.  By applying a documentation provision currently part of the Medicaid to the new health care law, the legislation would close verification loopholes in the 2010 health care reform law (the Patient Protection and Affordable Care Act (P.L. 111-148)) to ensure U.S. taxpayers are not footing the bill for illegal aliens’ health care. 

Specifically, H.R. 1822 amends the health care reform law by requiring applicants for subsidized insurance to attest in a sworn statement under the penalty of perjury that they are a U.S. citizen or eligible alien (such as a green card holder) and provide “satisfactory documentary evidence” demonstrating the same.  (H.R. 1822 § 2(a)-(b)) The alien must then provide documents to support his or her claim, a requirement that can be met in one of two ways.  The applicant must either present one of the following: a U.S. passport, a Naturalization Certificate, a U.S. Citizenship Certificate, or a valid state-issued driver’s license if the state issuing the license requires proof of citizenship or nationality to obtain the license. (See SSA § 1903(x)) Or, in the alternative, the applicant must present either a U.S. birth certificate, a Certification of Birth Abroad, a U.S. Citizenship Identification Card, a Report of Birth Abroad of a Citizen of the U.S., or other such document providing proof of U.S. citizenship or nationality, and a state-issued driver’s license (or other form of ID if under the age of 16 years) or any other form of documentation of personal identity deemed reliable by the Secretaries of Social Security and Homeland Security. (Id.)

Co-sponsors of Rep. Rohrabacher’s bill include Rep. Brian Bilbray (R-CA), Rep. Dan Burton (R-IN), Rep. Ken Calvert (R-CA), Rep. Randy Forbes (R-VA), Rep. Walter Jones (R-NC), Rep. Sue Myrick (R-NC), Rep. Ted Poe (R-TX), Rep. Dennis Ross (R-FL), and Rep. Lynn Westmoreland (R-GA).