FAIR Legislative Update April 18, 2011
Ninth Circuit Deals Blow to Arizona S.B. 1070
Last Monday, the Ninth Circuit Court of Appeals upheld the Arizona District Court’s injunction of key provisions of S.B. 1070, Arizona’s new immigration enforcement law. U.S. v. Arizona, No. 10-16645 (9th Cir. 2011) The ruling is the result of the Obama Administration’s lawsuit against the State of Arizona, filed by the Justice Department, which sought to prevent the law from taking effect last July. Monday’s ruling by the Ninth Circuit’s three-judge panel upheld the District Court’s injunction, ruling that Section 2(B)—the provision requiring law enforcement officers to verify the immigration status of individuals lawfully stopped if there is a reasonable suspicion that the person is an illegal alien—was preempted by federal law.
Writing for the majority, Judge Richard A. Paez argued that Section 2(B) was preempted in four primary ways. First, Judge Paez argued that under Section 287(g) of the Immigration and Nationality Act (INA), state and local law enforcement officers could only enforce federal immigration law under the direction of the U.S. Attorney General within the confines of INA Section 287(g). Without citing any precedent, Judge Paez interpreted 287(g) to mean that in the absence of a written agreement with the Attorney General, state and local officers are only permitted to enforce federal immigration law on an “incidental and as-needed basis,” and that written agreements are required for the “systematic and routine cooperation” required by Section 2(B). (Id. at 4820-21)
Second, Judge Paez claimed that because Congress had, through federal immigration statutes, granted the Executive Branch wide discretion in the enforcement of immigration laws, the Obama Administration’s “priorities and strategies” preempts Arizona’s S.B.1070. Through Section 2(B)’s mandatory directive to law enforcement officers, Paez wrote, Arizona has “attempted to hijack a discretionary role that Congress delegated to the Executive.” (Id. at 4825)
Third, Judge Paez cited Section 2(B)’s “deleterious effect” on U.S. foreign relations as a factor weighing in favor of preemption, arguing that because certain foreign leaders and Administration officials publicly criticized S.B. 1070, the law was an obstacle to the Executive’s authority to control foreign affairs. (Id. at 4826)
Finally, Judge Paez argued that “the threat of 50 states layering their own immigration rules on top of the INA also weighs in favor of preemption,” claiming that Arizona’s S.B. 1070 essentially opens the floodgates for other states to pass immigration legislation that would incrementally diminish DHS authority over immigration matters. (Id. at 4828-29)
In a compelling dissent, Judge Carlos T. Bea discussed why Section 2(B) is constitutional on its face (meaning that there is at least one set of circumstances under which the provision is valid) and exposed the majority opinion’s flawed reasoning. Addressing the majority’s arguments one-by-one, he began his dissent by asserting that under 287(g)(10) of the INA, Congress expressly provided that states are free to communicate with the federal government regarding the immigration status of any individual and assist in the enforcement of immigration laws. (Id. at 4856) Subsection 287(g)(10) states:
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperates with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
(Id. at 4865) As such, Judge Bea pointed out that the majority opinion does not provide any statutory, regulatory, or case authority to support its decision that state and locals without 287(g) agreements could only enforce immigration laws in instances of “necessity” or only when “called-upon” by the government, thus prohibiting “systematic and routine” cooperation. (Id. at 4866) Moreover, Judge Bea argued that “anyone who actually reads [287(g)(10)] will observe that none of the quoted words [in the majority’s opinion] appear in that statute, nor indeed in any part of the Immigration and Naturalization Act….” (Id.)
Turning to the majority’s argument that the Obama Administration’s “priorities and strategies” preempt Section 2(B) of S.B. 1070, Judge Bea argued that the power to preempt lies solely with Congress—not the Executive Branch. “The internal policies of [Immigration and Customs Enforcement] do not and cannot change this result,” he asserted. (Id.at 4874) “Otherwise,” he reasoned, “evolving changes in federal ‘priorities and strategies’ from year to year and from administration to administration would have the power to preempt state law, despite there being no new Congressional action.” (Id.) Judge Bea also questioned the Obama Administration’s sincerity in enforcing U.S. immigration laws: “How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B)’s limited scope of state-federal interaction, possibly interfere with federal priorities and strategies—unless such priorities and strategies are to avoid learning of the presence of illegal aliens?” (Id.)
Third, Judge Bea dismissed the majority’s ruling that S.B.1070’s impact on foreign relations must lead to a finding that Section 2(B) is preempted. According to U.S. Supreme Court precedent, he stated, “it is not simply any effect on foreign relations generally which leads to preemption, as the majority asserts,” but rather “a state law is preempted because it conflicts with federal law only when the state law’s effect on foreign relations conflicts with federally establishedforeign relations goals.” (Id. at 4877) Here, Judge Bea pointed out, there is no established foreign relations policy goal with which Section 2(B) may be claimed to conflict. (Id.)
Finally, Judge Bea rejected the majority’s finding that the possibility of all 50 states “layering” their own immigration laws on top of federal law preempts Section 2(B), arguing that Congress specifically passed laws with the intent that state and local jurisdictions would cooperate in the enforcement of immigration laws. “Congress created the Law Enforcement Support Center ‘to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis,” he asserted. (Id. at 4878) He also pointed out that federal law (8 U.S.C. § 1373(c)) requires ICE to respond to all immigration status inquiries from state and local authorities. (Id.) As such, Judge Bea concluded, 50 states enacting laws for inquiring into the immigration status of suspected illegal aliens was the “desire” of Congress, and thus weighs against—not for—preemption of Section 2(B)s requirement to inquire into the immigration status. (Id. at 4878-79)
The open-borders lobby praised the Ninth Circuit’s opinion, using it as an opportunity to try to scare other states from enacting similar legislation. Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund (MALDEF) stated, “The Ninth Circuit decision stands as a strong warning to any state that is still considering enacting its own unconstitutional regulation of immigration by replicating or expanding upon Arizona's ill-fated S.B. 1070.” (ACLU Website, Apr. 11, 2011) The National Immigration Law Center issued a similar statement: “Other states that want to walk down Arizona’s misguided and costly footsteps should take note: state immigration legislation is unconstitutional, as the Court of Appeals now has resoundingly confirmed.” (Id.) On the other hand, FAIR President, Dan Stein, remarked that “Monday's ruling turns the Constitution on its head, empowering the president to make immigration policy by executive fiat.” “The decision also leaves state and local governments at the mercy of an administration that, for political reasons, refuses to enforce the nation's immigration laws,” he said. (See FAIR Press Release, Apr. 12, 2011) Arizona Governor Jan Brewer vowed to appeal the decision either to a full panel of the Ninth Circuit or to the U.S. Supreme Court. “[W]e are going to continue this fight. And we're going to win this eventually,” she said. (Fox News Latino, Apr. 12, 2011)
The House Social Security Subcommittee held a hearing Thursday to challenge the E-Verify system and question the Social Security Administration’s role in verifying the legal status of workers. Subcommittee Chairman Sam Johnson (R-TX) and his carefully selected witnesses used the hearing as an opportunity to discredit the successful E-Verify program and push an alternative employment eligibility system based on the National Directory of New Hires, which is used to withhold income from individuals who fail to pay child support. (See H.R. 2028) “To build on the successes of E-Verify while making needed adjustments to ensure successful implementation, last Congress I introduced  the ‘New Employee Verification Act’ or NEVA … It’s time the Congress gave the American people an employment verification system that works, while protecting Social Security’s ability to serve the public,” Chairman Johnson stated in his opening remarks.
Despite testimony from Richard Stana, the Government Accountability Office’s (GAO’s) Director of Homeland Security and Justice, regarding the outstanding success of E-Verify, several open-borders witnesses testified that E-Verify is too unreliable to be made mandatory and called on Congress to pass “comprehensive immigration reform” instead. Tyler Moran, Policy Director of the National Immigration Law Center, argued that lawmakers should only consider making E-Verify mandatory if paired with an amnesty program. “If implemented without legalizing the eight million undocumented workers in our economy, employers will simply move them off the books into the underground economy….” said Ms. Moran.
Austin Fragomen, Jr., testifying on behalf of the HR Initiative for a Legal Workforce, echoed Ms. Moran’s comments. He also argued that E-Verify should not be made mandatory until illegal immigration is under control. Failing to recognize the connection between illegal immigration and the unlawful employment of illegal aliens, Mr. Fragomen remarked, “The first-step is limiting the number of people here illegally, then, once you have a more secure entry system, can you have a work-site enforcement program.” Rep. Xavier Becerra (D-CA), ranking member of the Subcommittee and a leading member of the Congressional Hispanic Caucus, praised Mr. Fragomen’s testimony in his closing remarks. “Sounds like you just read off the litany of things most people would say we need for ‘comprehensive immigration reform,” said Becerra.
A majority of members of Congress disagree with the hearing’s anti-E-Verify agenda, as evidenced by the number of bills introduced already this legislative session calling for the mandatory use of E-Verify. These bills include: H.R. 800, sponsored by Rep. John Carter (R-TX); H.R. 280 and H.R. 282, sponsored by Rep. Elton Gallegly (R-CA); H.R. 483, sponsored by Rep. Peter DeFazio (D-OR); and H.R. 693, sponsored by Rep. Phil Gingrey (R-GA).
In a lively hearing on Capitol Hill last week, the House Judiciary Subcommittee on Immigration Policy and Enforcement focused on employers’ complaints regarding H-2A guest worker program. The H-2A program allows U.S. employers to import foreign guest workers to work in agricultural jobs on a temporary or seasonal basis. (United States Citizenship and Immigration Services) The petitioning employer is required to show that there are not enough American citizens willing to do the agricultural work being offered, and that the guest workers will not adversely affect wages for American workers. (Immigration Reform and Control Act of 1986) There is no cap on the number of H-2A visas the government may issue.
Critics of the H-2A guest worker program last week, however, painted a picture of a frustrating, inefficient program plagued by bureaucratic delays. “The H-2A program is a failure,” Representative Dan Lungren (R-CA) shouted after the Assistant Secretary at the Department of Labor, Jane Oates, presented testimony portraying the H-2A program in a positive and productive light. “I’m more disappointed in your testimony than anything I’ve ever heard,” he said in response to her rose-colored testimony.
Congress established the H-2A program for temporary agricultural guest workers under the Immigration Reform and Control Act of 1986. (Immigration Reform and Control Act of 1986) The statute remained largely unchanged until 2008, when the Bush Administration, through the Department of Labor, issued regulations to change the program to an attestation-based requirement. (USCIS Finalizes Streamlining Procedures for H-2A Program, Dec. 18, 2008) Under the new rules, employers did not have to provide specific evidence that there were insufficient U.S. workers available for agricultural work, but rather just assert that this was the case through a signed statement. Arguing that such lax standards did not satisfy the statutory requirement of the program to protect U.S. workers, the Obama Administration restored the previous rules which mandate that employers document their compliance with the procedures for bringing H-2A workers into the country. (Department of Labor)
The return to an evidence-based approval process, however, has met resistance from agricultural employers. In his testimony, Leon Sequeira, former Assistant Secretary of Labor, told the Subcommittee that employers are continually suing the Department of Labor for delays in the process of applications and unexplained denial of applications. Agricultural employers, he said, have complained that the H-2A program is “characterized by extensive complex regulations that hamstring employers who try to use it.”
Other agri-business representatives claimed the bureaucratic red tape essentially forces them into hiring illegal workers. “Those farmers haven’t stopped farming – they’ve merely switched to illegal workers,” testified H. Lee Wicker, Deputy Director of the North Carolina Growers Association. “It is cheaper, and they remain off the Federal and legal radar screens – even high profile farmers can use illegal workers with impunity because they have been told by ICE agents they will not be investigated,” Mr. Wicker continued. Subcommittee Chairman Elton Gallegly (R-CA), noted that roughly half of farm workers surveyed admitted to being illegal immigrants.
Others testified that employers who employ H-2A agricultural guest workers are still getting a bargain over American workers. Mr. Leon Sequeira reminded the committee members that under H-2A visas, employers do not pay Social Security or unemployment taxes on the visa workers’ wages. This saves the employers roughly 10% over hiring a U.S. citizen. Such a system makes it extremely difficult for U.S. citizens to find work on American farms. Mr. Sequiera testified that employers routinely turn away U.S. workers, discourage them from applying for H-2A jobs, or subject them to unfair and illegal working conditions. He provided an example of two American women in Georgia who were recently fired from an H-2A employer after only a few days in the fields for allegedly failing to meet a production standard which had not been approved by the government and about which the workers had not been told until arriving at the farm.
Despite employers’ claims that the H-2A process is slow and burdensome, Ms. Oates testified that 70 percent of applications are processed within the 15 calendar day window provided by law. Still, growers urged Congressman that if they are going to be required to use a guest worker program that it be timely and consistent.
As the year’s session came to a close last Thursday, Georgia legislators passed a bill cracking down on illegal immigration. (Fox News, April 15, 2011; HB 87) “It's been a lot of work but we think we have done our job that our constituents asked us to do to address the costs and the social consequences that have been visited on our state by the federal government's failure to secure our nation's borders," said the bill’s sponsor, Representative Matt Ramsey.
Georgia’s H.B.87 clearly establishes that it is the state’s policy to fight illegal immigration. The legislation reads: “It is the intent of the General Assembly to encourage Georgia law enforcement officials to work in conjunction with federal immigration authorities and to utilize all resources made available by the federal government to assist state and local law enforcement officers in the enforcement of the immigration laws of this state and of the United States.”
Having established this policy, H.B.87 contains many provisions that are similar to Arizona’s immigration enforcement law, S.B. 1070. First, H.B.87 authorizes an officer to check the immigration status of an individual if the officer has “probable cause to believe [the] suspect has committed a criminal offense, including a traffic offense.” (H.B.87 Sec. 8) (Los Angeles Times, April 15, 2011) H.B. 87 also expressly states that when authorized by federal law, “a state or local law enforcement officer shall be authorized to arrest any person based on such person's status as an illegal alien or for a violation of any federal immigration law.” (H.B.87 Sec. 9)
Another important provision of the bill is its requirement that public employers, including contractors and subcontractors, use E-Verify to ensure their employees are legally authorized to work in the U.S. (H.B. 87 Sec. 3) In response, many business, agriculture organizations and restaurant groups lobbied against the passage of the bill, but lawmakers pointed out that Georgia is bearing a lot of costs for being a haven for illegal immigrants. (Fox News, April 15, 2011) As of 2008, FAIR estimates that roughly 495,000 illegal immigrants live in Georgia and cost the state $2.4 billion annually. (FAIR: The Fiscal burden of Illegal Immigration on United States Taxpayers)
Georgia Governor Nathan Deal campaigned on a promise to implement an Arizona-like immigration bill, and his spokesman confirmed last Friday that the Governor will sign the bill into law. (Los Angeles Times, April 15, 2011; CNN, April 15, 2011)
In an eleventh-hour move, Maryland’s General Assembly passed a bill Monday which will allow illegal aliens to attend state schools at the in-state tuition rate. (SB 167; Washington Post, April 11, 2011) The legislation, which cleared Maryland’s Senate earlier in the year, provides in-state tuition to illegal aliens who attend a Maryland high school for at least three years. (See FAIR Legislative Update, March 21, 2011) The student or his parents must also have paid income taxes for three consecutive years. (The Baltimore Sun, April 11, 2011; SB 167 Sec. 1(B)(4))
State legislators pushed the bill through the Maryland Assembly on the last day of the legislative session. Although Republican Senator David Brinkley originally filibustered the bill, he relented once the Senate rejected the more lenient amendments to the bill which the House of Delegates had already approved. (WAMU, April 12, 2011) These included providing exceptions to the tax-paying requirements. (The Baltimore Sun, April 11, 2011) Illegal aliens attending Maryland state colleges and universities who meet these requirements will begin receiving tuition breaks this fall. (Id.)