Employer sanctions law meets challenge

US Chamber of Commerce asks justices to kill Ariz. rule

By Howard Fischer

CAPITOL MEDIA SERVICES

PHOENIX — The nation's largest business group is asking the U.S. Supreme Court to quash Arizona's employer-sanctions law, at least in part to prevent the idea from spreading.

Legal papers filed in Washington urge the justices to rule it is illegal for Arizona to punish employers who are found guilty of knowingly hiring illegal immigrants. Attorney Carter Phillips, hired by the U.S. Chamber of Commerce, contends that such sanctions are pre-empted by federal law.

Phillips, also arguing on behalf of Arizona business groups and Hispanic-rights organizations, additionally wants the justices to conclude that the state is powerless to force companies to use the national E-Verify system to determine if new employees are legally entitled to work in this country.

Phillips said the court needs to review — and, from his perspective, overturn — the Arizona law because other states are following suit.

"In the first three months of 2009 alone, over 1,000 immigration-related bills and resolutions were introduced in all 50 states," Phillips wrote in his legal brief. "At least 150 of these bills related specifically to employment, and 40 such bills have been enacted in 28 states since 2007," the year Arizona approved its legislation.

Phillips argued that these actions are "disrupting the congressional plan to comprehensively and uniformly" regulate employment of immigrants.

"Without immediate action by this court, the crazy-quilt of state and local immigration statutes will continue to expand, multiplying burdens on employers and unfairness to employees," he wrote. Phillips said that by taking the case now, the high court has a chance to short-circuit all that, particularly if the justices conclude that states are not free to enact their own employer-sanctions laws.

Phillips also asked the justices to seek the views of the solicitor general to see what the Obama administration thinks about states having their own laws. Phillips said he believes the executive branch of the government will side with the employers' belief that only a national system is appropriate to determine who is here legally and the punishment for employers who break the law.

Whether that is true, however, remains to be seen. It was Homeland Security Secretary Janet Napolitano who, as governor, signed Arizona's employer-sanctions statute into law.

Steve Wilson, spokesman for Attorney General Terry Goddard, said Monday that his office believes the statute is legal, as the 9th Circuit Court of Appeals previously ruled, and will take the necessary actions to defend it.

Central to the case is who gets to punish companies that hire people in this country illegally.

The Immigration Reform and Control Act, approved by Congress in 1986, precludes states and cities from imposing any civil or criminal penalties on companies for their hiring practices. But the same law allows states to have their own "licensing or similar laws."

Based on that, Arizona legislators enacted the Legal Arizona Worker Act. It allows a judge to suspend the licenses of any firm found guilty of knowingly hiring illegal immigrants. A second offense within three years puts the company out of business.

Phillips contends the sole reason for the exemption was to let states impose sanctions "based on true licensing laws that require proper qualifications." And even in that case, he argued, a company would first need to be found guilty by a federal hearing officer or judge before a state could revoke a license.

The Arizona law even includes a company's articles of incorporation. "In short, a company found to have violated the new state immigration law could have its charter revoked and its very existence extinguished by the state," he said.

Similar arguments were presented to the 9th Circuit Court of Appeals, but the court upheld the validity of the law last year.

Although the law has been on the books for more than a year, no employer has been charged with violating it, much less been found guilty, though some county prosecutors reported they have received complaints.

  Aliens with Aliases

Identity Theft, Document Fraud and Illegal Employment

The Rocky Mountain Foundation has been informed that a forthcoming Center for Immigration Studies report examines the phenomenon of illegal immigration-related document fraud and identity theft, which is committed primarily for the purpose of employment.  In it, Ronald W. Mortensen, Ph. D and former Foreign Service Officer, debunks three common misconceptions:  illegal aliens are “undocumented;” the transgressions committed by illegal aliens to obtain jobs are minor; and illegal alien document fraud and identity theft are victimless crimes.  The paper discusses how some community leaders rationalize these crimes, contributing to a deterioration of the respect for laws in our nation.  A variety of remedies are presented, including more widespread mandatory electronic verification of work status (E-Verify and the Social Security Number Verification Service), which would prevent a very large share of this type of fraud, and immigrant outreach programs to explain the ramifications and risks of committing document fraud and identity theft. 

The findings include:

·         Illegal immigrants are not “undocumented.”  Illegal aliens have numerous fraudulent documents such as counterfeit Social Security cards, forged driver’s licenses, fake “green cards,” and phony birth certificates.  Experts suggest that approximately 75% of working-age illegal aliens use fraudulent Social Security cards to obtain employment.

·         98% of Social Security number theft involves people who use their own names with the stolen number, according to a Social Security Administration official.  The federal E-Verify program, now mandated in only 13 states, can detect this fraud, so more widespread use would help curb this problem.  Universal mandatory use of E-Verify would also stop virtually 100% of child identity theft.  Only two percent of SSN-related identity theft is said to involve perpetrators assuming another’s entire identity, which E-Verify cannot as easily detect. 

·         Illegal immigration and high levels of identity theft go hand-in-hand.  States with the highest incident of identity theft also have high levels of job-related identity theft (Arizona 39%, Texas 24%, New Mexico 19%, California 17%, Colorado 17%, and Nevada 15%).  Seven of the ten states with the highest number of illegal aliens per capita are among the top ten states for identity theft (Arizona, California, Texas, Florida, Colorado, Georgia, and New York).

·         Children are prime targets of illegal-alien-driven identity theft.  In Arizona, it is estimated that over one million children are victims of identity theft.  In Utah, 1,626 companies were found to be paying wages to the Social Security numbers of children on public assistance under the age of 13. These individuals suffer very real and very serious consequences in their lives.

·         Illegal immigrants who use fraudulent documents and/or identity theft to obtain employment or other benefits are committing serious offenses, and are not “law abiding”.  These acts are felonies.

·         Illegal employment enables illegal aliens to continue to send billions of dollars annually to their home countries rather than spending it in the U.S. and helping stimulate the American economy.  In October 2008 alone, a total of $2.4 billion was transferred to Mexico.

·         Corruption is a serious problem in the home countries of most illegal aliens.  Our society’s tolerance of it in the context of immigration erodes respect for the rule of law in immigrant communities and overall and paves the way for additional criminal activity and increased corruption throughout society.

·         Political, civic, religious, business, education, and media leaders support illegal aliens who commit identity theft while ignoring their victims.  These leaders blame Americans for “forcing” illegal aliens to commit document fraud and identity theft and make victims out of illegal aliens who are convicted of these crimes.  No similar concern is expressed for the American men, women, and children who are the actual victims of illegal alien identity theft.

·         The Social Security Administration and Internal Revenue Service facilitate illegal immigrant-driven identity theft.  For example, the Social Security Administration assigns Social Security numbers that are being used illegally to newborn infants.  The IRS demands that victims of identity theft pay taxes on wages earned by illegal aliens using their stolen Social Security numbers while taking no action to stop the identity theft.

·         State and local governments should take steps to address this problem by adopting tougher laws and devoting more resources to prosecution and public outreach to supplement federal efforts.  While the Bureau of Immigration and Customs Enforcement (ICE) is making an effort by targeting large document fraud rings and the most egregious employers, their resources are limited and stretched across multiple priorities.  In 2007, such cases represented only seven percent of the total ICE caseload.

·         Employers can ensure that they have a legal workforce by using a combination of the federal government’s E-Verify and Social Security Number Verification Service systems and by signing up for the federal government’s IMAGE program or privately conducted audits.