In the several threads about anti-illegal-immigration laws, both in Massachusetts and in Arizona, several people have opined that one flaw in Arizona’s law is that it is preempted by federal law. In other words, they say, Arizona is forbidden to make a crime out of being in Arizona when you’re present in the country illegally, because immigration is a federal issue and Arizona cannot legislate immigration-related crimes.
And although I don’t buy that analysis, it’s not without merit, and I’ve said before that I regard it as the most likely way the Arizona law would be overturned, if it is overturned.
Also in those threads, people have opined, often vigorously, against the thrust of the law: it would be better, goes the sentiment, to criminalize the actions of employers who hire the illegal immigrants. This would “dry the well,” so to speak, by eliminating a pressing motive for illegal immigrants to come here.
My question in this thread is: why wouldn’t such a law also be preempted by federal law? In other words, if the state cannot criminalize the act of being present without legal status, because immigration is a strictly federal issue, how can it criminalize employers who hire people present without legal status?
IANAL, as you know, but wouldn’t it fall under local jurisdiction to regulate business? Typically hiring policies fall under state legislation and not federal (except for certain equal opportunity laws).
It could fall under federal if the Commerce Clause comes into play, I’d guess, but for some it would be a stretch.
Wouldn’t a parallel be the prosecution of the war on drugs (such as it is)? The federal government is strongly involved in interdiction efforts to prevent the importation of drugs but the prosecution of users of drugs falls almost always under state and local enforcement. That would imply to me that, when the infraction is local, the state is the jurisdiction that controls.
Therefore, prevention and enforcement of immigration laws would fall under federal efforts but the prevention of illegals being hired and gaining employment would fall under state laws.
Arizona law does include provisions that punishes businesses that employ illegal immigrants. Punishments include having their state licenses/charters suspended or revoked…meaning the businesses could no longer conduct business within the state. This provision is also being challenged by the Obama administration.
Wouldn’t this represent massive government intervention into day to day business operations? Do we really want the government sifting through employment records, and having the authority to say someone is or isn’t entitled to work? Can we really trust it to not screw up?
Seems like we’d either get a situation like the “no fly list” where the list is incomplete and slow to update so that KNOWN illegals would be happily working.
Or we’d get a situation like the “no fly list” where the list includes hundreds of names seemingly at random, with no way to get off the list. Good luck Carlos Rodriguez, enjoy the mountain of paperwork you’ll have to produce and hours spent at the new DMV in order to get your life back in order.
Wouldn’t this also require dramatically increasing the size of the government?
I suspect you’re right, Bricker. Reading through the wiki article on e-verify, it seems that the handful of states that have written legislation around it are all over the place – the most common theme is to require use of E-Verify for government agencies and private business with government contracts. Illinois actually tried to block use of E-Verify, but that law was found to violate the supremacy clause by a district court.
The most far reaching law is Arizona’s Legal Arizona Workers Act, which “has survived a number of constitutional challenges and is currently in effect.” Does anyone have any idea what kind of constitutional challenges it’s survived? My 30 seconds of research found nothing, so I’m deferring to the big boys.
Honestly, eVerify is the answer. CSC and GD (my competitors) gets a Congressional allocation each year to continue the buildout and O&M (DHS/CIS is mostly funded by user fees, which have been dropping bigtime since the recession).
The problem is that it’s mostly voluntary (except for gov contractors). If they were to make it mandatory and comprehensive it would go a long way to fixing this problem. FWIW, from a should-they-be-allowed-to-do-it perspective, it seems to me like that’s a rare legit use of the Commerce Clause.
Arizona’s 2007 Employer Sanctions law requires that any company that receives a license to operate in the state is **required[\b] to use E-verify. This law has been challenged numerous times for pre-emptive right and successfully been upheld in Federal court…just as many expect the more recent Arizona law will be.
The answer to this seems clear to me. Compare the amount of money in the bribes paid to politicians by businesses, to the amount paid by illegal aliens. Who would you think would be targeted based on that?
So Arizona can make laws on a state issue (like who can be hired) even if the status of the “who” is determined by federal law.
So why can’t Arizona make it a crime to be on public Arizona lands if you’re not present legally? Same formula: the presence of people on Arizona public lands is a state issue. The legal status of those people is a federal issue.
Arizona can already make laws on issues in which status is based on federal determinations. For example, Arizona universities can limit (or deny or revoke) admission of individuals based on federally-determined residency status; Arizona agencies can deny services to individuals based on residency status; Arizona can restrict its residents from holding office or voting based on residency status.
That notwithstanding, I don’t see any reason why Arizona cannot make it a crime to be on public land if you’re not present legally. I see several reasons why Arizona would have a hard time enforcing such a law.
ETA: You do know that SB 1070 does make it a crime for illegal aliens to be present on public land, right?
Entirely agree. I’m not sure it would take that much government intervention. If the penalities are severe enough (exponentially increased per violation) then they would be very effective.
Of course, these laws are only part of the process. The next step would be to improve our tax and commercial treaties with Mexico. That is, encourage investment and development within Mexico itself. That, in the long term, will resul in a safer and more democratic Mexico. Which will, in turn, lead to less immigration as most people really don’t want to leave their home.
Can deportation be administered as a penalty at a state level without the federal courts getting involved? If not, then I’m not sure what the penalty would be for violation of the law Bricker proposed in post 10, unless it would be incarceration in which case Arizona’s penal system would be quickly over-burdened.
Well, since it’s a crime, Arizona may arrest and detain those guilty of it, and they may also notify federal authorities about the presence, in their jail, of illegal immigrants. They may not deport directly, however.
Just out of curiosity, what happens if the feds don’t do anything? Is there a sentence limitation, or do you just spend your life in jail waiting to never be deported? If they give you a finite sentence, are they then not obligated to re-arrest you as soon as you’re released?
Thanks, I thought it would be unusual if it was possible to do this at the state level given that there must be some degree of diplomatic action with the country to which they were being deported. By the way do you know if the manner you described (incarcerating the immigrants and informing the feds) is the way Arizona is planning to enforce the current law? If so it would seem that as suggested by steronz Arizona would to some extent be at the mercy of the federal immigration agencies taking the time to deport all the immigrants they catch.
Note: I’m not debating here, just trying to fight my own ignorance.
If the feds don’t do anything, then Arizona’s hands are tied. They can only imprison the person for the time specified for a violation of their state law, then they must release him.
But they’re not obligated to re-arrest you as soon as you’re released. Once released, they would only be obligated to re-arrest you if you again were stopped or detained for some other offense.