Posted on July 23, 2007

Immigration Shootout At The Local Corral

Janet Novack, Forbes, July 19, 2007

Employers, beware. With comprehensive federal-immigration reform comatose, state and local politicians are rushing to do something about illegal immigration. And increasingly, employers, as well as illegal immigrants themselves, are being targeted by these frustration fueled efforts.

Earlier this month, Arizona Gov. Janet Napolitano signed the toughest employer sanctions in the nation: Beginning Jan. 1, all 130,000-plus Arizona employers will be required to use a now voluntary Web-based federal service—commonly known as the “basic pilot program”—to check the legal work status of new hires. Any business that “knowingly” or “intentionally” hires illegal immigrants would, after a second offense, lose its license to operate in Arizona. In effect, it would face a corporate death sentence.

Already, two employer groups, the Arizona Contractors Association and the Arizona Employers for Immigration Reform, have filed suit in federal court to block the new law, asserting, among other things, that it denies employers due process and is pre-empted by federal laws.

Kris W. Kobach, a University of Missouri-Kansas City School of Law professor, who worked on immigration policy for former U.S. Attorney General John Ashcroft and who helped draft the Arizona statute, insists that it’s narrowly targeted to take advantage of an enforcement mechanism Congress left the locals in 1986. At that time, Congress made employing illegal aliens a federal offense and explicitly pre-empted state and local criminal charges and civil fines.

Still, Angelo I. Amador, director of immigration policy for the U.S. Chamber of Commerce, isn’t convinced. He says the Chamber might challenge the Arizona statue, as well as new laws affecting employers in Georgia and Colorado.

“We need to challenge them now. We want to stop them from spreading,” Amador says. The Chamber has already filed a friend of the court brief supporting a federal court challenge (originally filed by immigrants rights groups) to a crackdown adopted by the city of Hazleton, Pa. That law, which includes licensing sanctions for employers and residency restrictions, has been blocked while a federal judge considers its legality.

“There wouldn’t be a shortage of places for us to do our second filing,” observes Amador, who ticks off localities, including two nearby Virginia counties, that have acted on immigration concerns in just the past few weeks.

An April survey by the National Conference of State Legislatures found that a record 1,169 immigration bills—double the number from the year before—had been introduced this year in state legislatures and that the largest number (199) dealt with employment.

Indeed, the one thing all parties seem to agree on is that until Washington acts, local and state politicians will feel compelled to do so. When she signed the new Arizona law, Democrat Napolitano said that it had flaws—including the lack of an exception to license revocation for essential businesses such as hospitals and power plants—and that she considered immigration a “federal responsibility.” But, she added, “because of Congress’ failure to act, states like Arizona have no choice but to take strong action.”