Tuesday, June 1, 2010

Update from Arizona, Ground Zero for the National Debate on Immigration; DOJ Visits the Valley of the Sun, "Preliminary" Assessment of Arizona Law Released, and SG Kagan

News keeps coming from Arizona, including the news of protests over the Memorial Day weekend of the state's new immigration law..  On Friday, U.S. Department of Justice officials visited the state and informed the Arizona Attorney General and aides to the Governor over grave concerns with the new Arizona law. By the way, four Arizona professors, Jack Chin, Carissa Hessick, Toni Massaro, and Marc Miller, have prepared a "preliminary" assessment of Arizona's latest effort at immigration regulation.  See also the Migration Policy Institute's "guide" on the Arizona law.

On Friday, the U.S.  government filed a brief in the U.S. Supreme Court supporting the granting a writ of certiorari in a legal challenge to the constitutionality of the Legal Arizona Workers Act (LAWA).  The Department of Justice focused on preemption, which is a central issue with respect to the constitutionality of Arizona's new-if-not improved immigration law..

The U.S. Solicitor General filed a brief as Amicus Curiae in Chamber of Commerce of the United States of America v. Candelaria; the Acting Solicitor General, Neal Katyal, and head of the Civil Rights Division, Tom Perez, are the two lead counsel on the U.S. government's brief -- Elena Kagan, now a Supreme Court nominee but formerly the Solicitor General, not listed.  Download Candelaria[1]

There are three questions presented in the petition for certiorari,  The Solicitor General addressed each separately, concluding that the Supreme Court should hear the express preemption issue, but should not hear the E-Verify and implied preemption issues:

(1) Whether 8 U.S.C. 1324a(h)(2) -- which "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens" -- expressly preempts the provisions of the Legal Arizona Workers Act (Arizona statute), Ariz. Rev. Stat. Ann. Sec. 23-211 et. Seq., that sanction employers for knowingly or intentionally employment unauthorized aliens.

The U.S. Solicitor General concxluded that this question warrants Supreme Court review. The Department of Justice (DOJ) argued that the Legal Arizona Workers Act, "at bottom" is not a licensing law, but a law that prohibits the hiring of unauthorized aliens. The DOJ also argued that the Ninth Circuit's decision violates the maxim "that exceptions should not be permitted to 'swallow the rule." A state is prohibited from imposing even a tiny monetary fine, but LAWA allows the State of Arizona to terminate an employer's entire business license. The Solicitor General also cites case law holding that courts should not give broad effect to the savings clause "where doing so would upset the careful regulatory scheme established by federal law" and argued that LAWA upsets the careful balance in IRCA between preventing discrimination and employer sanctions.

(2) Whether a state or local government may require employers to enroll and participate in the federally created and administered E-Verify program.

After making several statements suggesting that the Ninth Circuit holding regarding the E-Verify requirement in LAWA was incorrect, the Solicitor General nonetheless concludes the Supreme Court review of the E-Verify question is not warranted. In support of this conclusion, the Solicitor General pointed out that there is no enforcement mechanism if employers fail to use E-Verify. The DOJ then suggested that due to the evolving nature of E-Verify and the potential for federal Congressional action, that the Court allow the possibility that political action will address the E-Verify question.

(3) Whether the Arizona statute is impliedly preempted because it undermines what Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), describes as a "comprehensive scheme" to regulate the employment of unauthorized aliens.

The Solicitor General concluded that the implied preemption issue does not warrant Supreme Court review, arguing that Hoffman is irrelevant because it did not involve preemption or state regulations. But more importantly, the Solicitor General stated that addressing implied preemption was not necessary because IRCA expressly preempts the employer sanctions provisions of IRCA.



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