There are times.........
When the 9th Circus court of appeals actually surprises me
9th Circuit upholds law on employer sanctions
Panel rejects challenges to penalties for knowingly hiring illegal entrants
By Howard Fischer
Capitol Media Services
Tucson, Arizona | Published: 09.18.2008
PHOENIX — A federal appeals court upheld the legality Wednesday of Arizona's nearly nine-month-old employer sanctions law.
Without dissent, a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected challenges by business groups, employers and Hispanic rights advocates to the law, which allows a judge to suspend or revoke the business licenses of any firm found guilty of knowingly hiring undocumented workers.
The judges rejected arguments the law infringes on the exclusive right of the federal government to control immigration. Judge Mary Schroeder, writing for the unanimous three-judge panel, said Congress specifically allowed states to enact exactly the kinds of laws that Arizona has passed and to impose the kind of penalties the state law allows.
Schroeder also rejected the contention state lawmakers acted illegally in requiring employers to check the immigration status of all new workers through the federal government's E-Verify system.
Finally, the court said legal protections exist in the law for companies charged with hiring undocumented workers to argue to a judge that they did not, in fact, violate the law.
Wednesday's ruling does have one potential bright spot for challengers.
Schroeder pointed out that, to date, no Arizona employer has actually been charged with violating the law since it took effect Jan. 1.
The law allows a judge to suspend a company's right to do business in Arizona for a first offense; a second conviction of knowingly hiring an undocumented worker within three years puts the company out of business, at least at the location where the violation occurred.
The judge said the court could reach a different conclusion if a company facing actual punishment can prove that the law, as it is being applied, is unfair or illegal.
A central point raised by challengers was who gets to punish companies that hire people not in this country legally.
The Immigration Reform and Control Act, approved by Congress in 1986, specifically precludes states and cities from imposing any civil or criminal penalties on companies for their hiring practices.
Schroeder noted, however, that law has an exemption for "licensing and similar laws."
And she said the federal law does reserve to states the power to decide a company's "fitness to do business" based on whether it hires undocumented workers.
David Jones, president of the Arizona Contractors Association, said Wednesday's ruling is disappointing but not surprising. Jones said his association and other groups that challenged the law may ask the full 9th Circuit to review the ruling, and, if necessary, go to the U.S. Supreme Court.
But Rep. Russell Pearce, R-Mesa, said he believes the statute he crafted will withstand future challenges.
"I very carefully wrote the law to comply with federal law," he said.
Pearce said the law has safeguards for companies, starting with the requirement that to obtain a conviction, prosecutors prove an employer knowingly broke the law. He said that protects them against prosecution for innocent mistakes.
And he said the law also gives a "rebuttable presumption" of innocence to any firm that used the E-Verify system to check on new workers.
Pearce said the law has already saved taxpayers millions of dollars in education costs because it cut enrollments of children in the state illegally.
But Glenn Hamer, president of the Arizona Chamber of Commerce and Industry, said the law is hurting the state.
"It's created an environment that's diminished business investment," said Hamer, whose organization was one of the challengers in the suit.
Its unfortunate that this law is not being enforced, but I suspect it will take a major raid by CBP to begin a state level investigation.
I hate to say this but...Kudos to the 9th circus court of appeals for finally getting one right.