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Immigration: Cities and States Rush in Where Congress Fears to Tread*
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By Stephen Yale-Loehr and Ted Chiappari** [Editor's note: Some readers may wonder why Stanley Mailman is not co-author on this column. After all, Mr. Mailman penned the New York Law Journal's first column on immigration law back in 1976. Mr. Mailman kept Law Journal readers abreast of developments in the field over the ensuing years with his thoughtful commentary and reasoned analysis. After 30 years, Mr. Mailman will no longer be contributing to this column, although he will otherwise continue writing, practicing law, and serving as co-author of the treatise Immigration Law and Procedure. His co-author of the column for the last ten years, Stephen Yale-Loehr, will continue to write on immigration matters fo the New York Law Journal, together with Ted Chiappari, a partner at Satterlee Stephens Burke & Burke LLP. Mr. Yale-Loehr and Mr. Chiappari express their gratitude to Mr. Mailman for his scholarship, guidance and contributions to the practice of immigration law.] As the stalemate in Congress over comprehensive immigration reform continues, many states and cities have jumped into the fray with their own immigration laws. Most of the measures attempt to encourage foreign nationals to leave by making life and work within their states and communities effectively impossible without proper documentation. Some also penalize employers who hire undocumented workers or landlords who house them. Many of the new state and local immigration laws are being challenged in court.1 Whether they are found to be preempted by federal law or withstand judicial scrutiny remains to be seen, but these laws have clearly been a powerful expression of local frustration with our national immigration laws and policies. Summary of State and Local Immigration Laws State legislatures introduced over 570 immigration bills through October 31, 2006. Ann Morse et al., Immigrant Policy Project, National Conference of State Legislatures, State Legislation Related to Immigration (2006), at http://www.ncsl.org/programs/immig/6ImmigEnactedLegis3.htm. Of that number, thirty-two states enacted 84 laws, more than double the number of state immigration laws enacted in 2005. Most of these laws address employment and public benefits, while some focus on voting, education, housing, drivers’ licenses, and English-only requirements. Id. See generally Jerry Seper, States Stepping up to Tackle Immigration Laws, Washington Times, July 18, 2006, at A3. In Colorado, a law that took effect January 1 requires all Colorado employers to examine the legal work status of every newly hired employee. Colo. Rev. Stat. § 8-2-122 (2006). Employers must keep copies of all documents provided by an employee used to prove work eligibility, and sign an attestation confirming under penalty of perjury that the employer has not knowingly hired an illegal worker. Employers who violate the new Colorado law can be fined up to $5,000 for a first violation, and up to $25,000 for subsequent violations. Id. The new Colorado law effectively means that in addition to the federal I-9 form, employers in that state must keep an extra attestation on file for new workers verifying their work eligibility. To introduce employers to this new compliance burden, the Colorado Department of Labor and Employment has published a FAQ about the new law and a model “affirmation of legal work status” for employers to use. Colorado Department of Labor and Employment, General Information on HB 06-1343 and HB 06S-1017 (rev. Dec. 26, 2006), at http://www.coworkforce.com/ice/FAQsHB061343HB06S1017.pdf. The Colorado law goes beyond federal employer sanctions law. Federal law permits employers to accept documents presented for I-9 purposes without independent verification as long as they reasonably appear genuine on their face. Immigration and Nationality Act (INA) § 274A(b)(1)(A), 8 U.S.C. § 1324a(b)(1)(A). The Colorado law does not permit this exception. Colorado employers must examine the documents submitted by each newly-hired employee to make sure they are accurate and not fraudulent. Colorado employers believe they are in an impossible situation. As Tony Milo, executive director of the Colorado Contractors Association, told the Denver Post, “we’ve now got this complex web of state and federal regulations that sometimes conflict with each other.” Elizabeth Aguilera, Contractors Walking Immigration Tightrope, Denver Post, Feb. 4, 2007, at K-01. If employers go too far in examining workers’ documents, they may face liability under federal antidiscrimination laws. That happened to the meatpacking company Swift & Co. Swift’s efforts to confirm the work eligibility of its job applicants led to a Justice Department discrimination investigation in 2000. The company eventually paid a $200,000 settlement in 2002. The company then began to participate in the Basic Pilot Program, a federal program that uses Social Security numbers to verify employees’ work eligibility. But federal authorities acknowledge that the Basic Pilot Program can’t reliably show when someone is misusing someone else’s identity. Last December, federal immigration authorities raided six Swift plants, including one in Colorado, and arrested 1,282 undocumented workers, some of whom are suspected of or charged with identity theft. Id. Colorado is not alone in making immigration a state priority. Last April legislators in Georgia passed the Georgia Security and Immigration Compliance Act. Among other things, it requires employers who contract with the state to register and participate in the Basic Pilot Program, and takes away certain income tax and tax withholding benefits from Georgia employers who hire people not authorized to work in the United States. Ga. S.B. 529, Reg. Sess. (2006) (enacting new Ga. Code Ann. §§ 13-10-90, 13-10-91, 16-5-46, 35-2-14, 42-4-14, 43-20A-1 to -4, 48-7-21.1, 48-7-101(i), 50-36-1 (Supp. 2006)). See generally W. Melvin Haas, III et al., Annual Survey of Georgia Law: Labor and Employment Law, 58 Mercer L. Rev. 211, 214-21 (2006). Over 100 cities have also recently enacted or are considering laws trying to curb illegal immigration. See generally http://www.prldef.org/Civil/Latino%20Justice%20Campaign.htm. The local laws range from penalizing companies that employ undocumented immigrants to making English the official language. For example, a new law in Hazleton, Pennsylvania makes it unlawful for any person or business entity that owns a dwelling unit in Hazleton to “harbor” a foreign national in the dwelling unit, “knowing or in reckless disregard of the fact that the alien has come to, entered, or remains in the United States in violation of law.” Hazleton, Pa., Ordinance 2006-18 § 5.A (Sept. 21, 2006). Another new law in Hazleton requires renters to first obtain an occupancy permit. Applicants for an occupancy permit must show various items, including “proof of legal citizenship and/or residency.” Hazleton, Pa., Ordinance 2006-13 § 7.b.1.g (Aug. 15, 2006). This effectively requires Hazleton officials to determine renters’ immigration status. The Preemption Doctrine Most of the state and local laws are being challenged in court. Many of the lawsuits are based on the preemption doctrine. Under the Supremacy Clause of the U.S. Constitution, federal law is the supreme law of the land. U.S. Const. art. VI. State or local laws that conflict with federal law are preempted. Under modern preemption doctrine, courts find preemption in three circumstances. First, express preemption occurs when a federal law contains explicit language that manifests intent to oust state authority. Second, even if a federal statute is not sufficiently clear for express preemption, a state law can still be invalid under “field preemption” if the nature of the subject matter or the comprehensiveness of the federal scheme signifies that Congress intended federal law to occupy a given field. Finally, “conflict preemption” applies in two circumstances: either when compliance with both federal and state regulations is a physical impossibility, or when the state law “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). The leading preemption case in the immigration context is De Canas v. Bica, 424 U.S. 351 (1976). At issue in De Canas was a California law that barred employers from knowingly hiring undocumented noncitizens. The lower courts struck down the state statute as an unconstitutional encroachment on a comprehensive congressional scheme, i.e., the Immigration and Nationality Act. The Supreme Court reversed, finding that the California law cleared two of its three preemption tests. First, the California law did not encroach on the federal government’s exclusive field, “regulation of immigration,” and instead targeted employment practices, a presumptively valid exercise of the state’s police powers. Second, Congress did not clearly manifest its intent to oust state law from the field, because at the time the INA did not specifically target employment of undocumented noncitizens. The Court declined to resolve the third test—whether the law conflicted with the congressional purpose and implementation of the INA—and remanded for an inquiry on that issue. One example of how courts are likely to review state or local immigration legislation is a pair of district court opinions that together invalidated nearly every aspect of Proposition 187, a California law enacted in 1994. Proposition 187 included eight provisions that curtailed the right of undocumented foreign nationals to gain access to public benefits and education, required state officials to identify and report people without proper documentation to federal authorities, and imposed criminal penalties for the falsification of immigration documents. A federal district court struck down most of Proposition 187 on preemption grounds. League of United Latin American Citizens v. Wilson (LULAC 1), 908 F. Supp. 755 (C.D. Cal. 1995); League of United Latin American Citizens v. Wilson (LULAC 2), 997 F. Supp. 1244 (C.D. Cal. 1997). The LULAC 1 court noted that Proposition 187 had a “dual purpose and effect.” LULAC 1, 908 F. Supp. at 765. It aimed to (1) deter foreign nationals from “from entering or remaining in the United States” without proper documentation and (2) forbid “the use of public funds to provide social services, health care and education to persons deemed to be present in the United States illegally.” Id. The court found the latter purpose (denying public benefits) permissible. The provisions that facilitated the first purpose and effect, however, impermissibly regulated immigration by determining “who should or should not be admitted into the country.” Id. at 769 (quoting De Canas v. Bica, 424 U.S. 351, 355 (1976)). The multiple identification, detection, and federal reporting provisions in Proposition 187 together created a “comprehensive scheme to detect and report the presence and effect the removal of illegal aliens.” Id. In essence, the LULAC court held that California’s effort to regulate immigration was unconstitutional because it was too comprehensive. As such, Proposition 187 unduly interfered with federal immigration law. Whether more narrowly tailored state or local immigration laws can survive a preemption challenge remains to be seen. Most of the lawsuits challenging new state and local immigration laws have been filed too recently to be decided. One exception is Louisiana v. Barrientos, No. 06-1726 (La. 24th Dist. Jan. 31, 2007), available at http://bibdaily.com/pdfs/Barrientos%201-31-07.pdf. In that case a state district judge ruled unconstitutional a Louisiana law that makes it a felony for people to drive in Louisiana without documentation proving that they are legally in the United States. The judge held that the state law “unconstitutionally preempts federal immigration law...[and] is an impermissible attempt to regulate immigration.” Slip op. at 2. See generally Ann M. Simmons, Immigration Traffic Law Criticized in Louisiana, Los Angeles Times, Feb. 2, 2007. Conclusion Whether or not state and local immigration laws pass constitutional muster as a legal matter, they hurt the country as a policy matter. As Josh Bernstein of the National Immigration Law Center told one reporter, “states are flailing blindly for solutions to problems that are above their heads, like children swinging at a piñata. Only the federal government can make the comprehensive changes necessary to fix our broken immigration system.” Daniel B. Wood, States Target Employers of Illegal Migrants, Christian Science Monitor, July 11, 2006, at 1. Until Congress enacts a sensible comprehensive immigration reform bill, states and cities are likely to continue venting their frustration by passing further immigration laws. ** Stephen Yale-Loehr is co-author of Immigration Law and Procedure, published by LexisNexis Matthew Bender. He also is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration law at Cornell Law School. Ted Chiappari is a partner at Satterlee Stephens Burke & Burke in New York City.
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