Rudy Acuna - On the Trail of American White Supremacist and the complicit. Towards Fighting Back

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Arizona ia one of the first states to indict the false electors around the events of January 6

 

Michigan Journal of Race & Law

Spring, 2010

15 Mich. J. Race & L. 417

LENGTH: 13912 words
Arizona is one of the first states to indict false electors in the last presidential election. This could have ben predicted as well as the ongoing struggle for the state. I found this while traveling in Michigan. Michigan has one of the largest Mexican (or had) in the nation. Governor Romney Sr. recognizing the debt Miichgan owed to migrant workers sponsors Law giving scholarship aiad to the children of the migrant farmworkers. This interest was internalized and graduate students did studies on Mexicans in Michigan and states of origin.synthesize the following document dure to space. Legislation even then was being passed in Arizona to contain Mexican workers. The documents predicted a repression or suppression.

 

NOTE: THE LEGAL ARIZONA WORKERS ACT AND PREEMPTION DOCTRINE

NAME: Sandra J. Durkin *

BIO: *J.D. Candidate, 2010, University of Michigan Law School; B.S., B.A., 2007, University of Arizona. I would like to thank Professor Michael Wicks and Professor Barry Winograd for their guidance in selecting a note topic and input throughout the writing process and Annise Maguire and others at the Michigan Journal of Race & Law. I would also like to thank Professor Carlos Gallego for his inspiration, as well as my family for their love and support.

HIGHLIGHT: In recent years, a spate of states passed laws regulating the employment of undocumented immigrants. This Note argues that laws that impose civil sanctions on employers that hire undocumented immigrants are preempted by both federal immigration law and federal labor law. The Note focuses specifically on the Legal Arizona Workers Act because it went into effect in 2008 and has amassed more than two years' worth of data on its enforcement, and because it is touted as the harshest state anti-immigration measure to date. This Note examines the law's impacts and argues that practitioners nationwide should challenge the Legal Arizona Workers' Act, as well as the proliferation of similar state laws that threaten civil rights, business and labor interests, and the supremacy of the Federal Constitution.

 

TEXT:
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INTRODUCTION
 
On May 12, 2008, in the small town of Postville, Iowa, federal authorities arrested nearly 400 employees at a meat processing plant on  [*418]  suspected immigration violations. ⁿ¹ After eight days of detention, federal prosecutors went on to press criminal charges for identity theft against 306 of the primarily Mexican and Guatemalan employees. ⁿ² The raid drew criticism from human rights organizations, ⁿ³ religious groups, ⁿ⁴ politicians, and even the community of Postville. ⁿ⁵ Department of Homeland Security ("DHS") officials justified the controversial raid by citing the need to "put pressure on companies with large numbers of illegal immigrant workers," to reduce the number of undocumented immigrants in U.S. borders. ⁿ⁶

Although the Iowa raid, which is now referred to as "the largest single-site operation of its kind in American history," was unusual in magnitude, it was by no means an isolated incident. ⁿ⁷ Less than one month later, in Phoenix, Arizona, local Sheriff's deputies arrested nine employees at the Waterworld fun-park after receiving information that the employees used fraudulent identification. ⁿ⁸ The county attorney's office ultimately handed down indictments against all nine employees. ⁿ⁹ The county attorney's office also indicated that the purpose behind the fun-park raid was to investigate potential violations of the Legal Arizona Workers Act ("LAWA"), a recently-enacted state law which prohibits employers from hiring undocumented immigrant workers. ⁿ¹⁰ Although conducted on a much smaller scale than the Iowa raid, immigration raids conducted by state and local authorities are increasing in frequency in Arizona, ⁿ¹¹ and the cumulative results can be just as devastating. Many blame LAWA for increasing the workplace immigration raids that harm many Arizona residents. ⁿ¹²

 [*419]  Another criticism that has been leveled against LAWA is that it is preempted by federal law; that is, it gives state and local officials authority to regulate immigration in a manner that is reserved exclusively to the federal government. ⁿ¹³ Preemption occurs when state law conflicts with federal law or when state law poses an obstacle to the operation of federal law. ⁿ¹⁴ State laws that affect immigration, even if they do not purport to dictate who stays and who goes, are frequently preempted because they run the risk of interfering with the vast regulatory scheme that Congress created to control immigration. ⁿ¹⁵

When state and federal law enforcement approach the problem of undocumented immigrant workers in the same manner, it is difficult to see how the state law could interfere with the operation of the federal law. This is currently the case with LAWA and similar laws in other states ("employer sanctions laws"). ⁿ¹⁶ After all, the raids in Iowa and Arizona both targeted businesses, rather than undocumented employees. Both were carried out pursuant to statutes prohibiting employers from hiring undocumented workers. Both sought to achieve the overarching goal of reducing illegal immigration by removing opportunities to work. Perhaps  [*420]  most significantly, Immigration and Customs Enforcement ("ICE") officials in Iowa and Sheriff's deputies in Arizona conducted the raids in the same manner: in the course of collecting evidence against the employers, they arrested the workers, charged them with various identity theft crimes, and initiated deportation proceedings. ⁿ¹⁷ To many, it appears that LAWA simply makes the federal government's tasks of enforcing the immigration laws easier. ⁿ¹⁸ Nevertheless, federal law can preempt a state law when they share the same purpose. ⁿ¹⁹ Even if state and federal laws accomplish the same task, if the congenial state law "interferes with the methods by which the federal statute was designed to reach this goal," the state law must be preempted. ⁿ²⁰ "In fact, the very fact that state and federal objectives are the same only heightens the chances for trouble: Conflict is imminent, the Supreme Court famously noted when "two separate remedies are brought to bear on the same activity.'" ⁿ²¹

When state and federal authorities are no longer working in a similar manner toward a similar objective, the argument for preemption is more clear. This may soon be the case with LAWA and other state employer sanctions laws, if President Barack Obama responds to calls for a moratorium on worksite immigration raids such as the one in Postville, Iowa. ⁿ²² During his campaign, President Obama indicated that he would consider suspending immigration raids, ⁿ²³ at least until Congress passes new immigration legislation. President Obama has also stated that raids are ineffective and unjustifiably "place[] all the burdens of a broken system  [*421]  onto immigrant families." ⁿ²⁴ Accordingly, it is probable that within the next few years, immigration raids by ICE will be curtailed, while raids by local officials in Arizona and other states will continue to increase. If the federal government determines that raids are ineffective to address the problem of illegal immigration, and chooses to divert its resources toward other methods while the states continue to arrest, prosecute, and deport undocumented immigrants, it is more clear that such action could pose a conflict for the federal enforcement of immigration laws. ⁿ²⁵

This Note argues that LAWA would not only be preempted under such circumstances, but that it is preempted by current federal immigration law and federal labor law. It examines the law's impacts and concludes that, even if it withstands legal challenge, federal legislation should be implemented to end state regulation of the employment of undocumented immigrants. Part I explains why this Note focuses on LAWA, as opposed to other state employer sanctions laws, and discusses its relevance to national practitioners and preemption doctrine. Part II discusses whether LAWA is preempted by federal immigration law. It begins with the Federal Immigration Reform and Control Act ("IRCA"), the first major piece of legislation focusing on the employment of undocumented immigrants, and goes on to explain preemption doctrine generally. The discussion then reviews arguments for and against preemption, arguing that Congress intended IRCA to preempt state regulations such as LAWA. In particular, it notes that IRCA's text, federal court decisions, and the effects of LAWA indicate that LAWA is preempted. Additionally, it makes clear that policy considerations weigh in favor of preemption.

Part III considers the possibility of preemption under federal labor law. After providing some background information on the National Labor Relations Act ("NLRA"), this Note contends that LAWA interferes with federally protected labor rights and is thus preempted under the Garmon doctrine. The discussion then turns to Hoffman Plastics, a monumental decision affecting the rights of immigrant workers, and argues that LAWA upsets the delicate balance Hoffman struck between labor and immigration law. Finally, this Note reviews the policy goals of federal labor law and  [*422]  highlights how the practical results of LAWA suggest that it should be preempted.

I. LAWA and the National Practitioner
 
Although this Note focuses on LAWA, the analysis is relevant to practitioners nationwide. Both the preemption analysis and the policy-based criticisms apply to employer sanctions laws in states other than Arizona. In 2008 and 2009, various states enacted a total of forty-one laws regulating the employment of immigrants. ⁿ²⁶ Many of these laws impose sanctions on employers that hire unauthorized workers. ⁿ²⁷ This Note focuses on Arizona's law because it has been called the harshest of the employer sanctions laws. ⁿ²⁸ Arizona, however, is not unique. LAWA is particularly harsh because it permanently strips businesses of their licenses after a few violations, but laws that suspend or revoke business licenses after many violations are still preempted by federal immigration law for the reasons outlined in this Note.

LAWA is also significant because it will likely serve as a model for other state employer sanctions laws. It is the first law specifically designed to conform to preemption exemptions in federal immigration law. Past state laws have been quickly struck down because they clearly violate preemption doctrine. LAWA is more carefully crafted and so less obviously in conflict with preemption doctrine. Accordingly, other states will follow Arizona's example and similar provisions. This possibility has become substantially more likely since the Ninth Circuit upheld LAWA against a preemption challenge. Thus, the preemption analysis here will be useful to national practitioners. In fact, it may be more useful to practitioners in other states that are not bound by the Ninth Circuit's holding.

This Note also focuses on Arizona's law because it is enforced in particularly troubling ways. ⁿ²⁹ Again, Arizona is not unique. LAWA enforcement is particularly troublesome because anti-immigration sentiment in Arizona is high, but flourishes also in non-border states across the country. Practitioners in these states may be able to challenge the discriminatory or retaliatory enforcement of employer sanctions laws. Federal immigration raids highlight the danger of employers in states other than Arizona using employer sanctions laws to flout federal labor law. Although these raids were triggered by federal immigration law, as more states adopt their own laws, employers will increasingly contact state  [*423]  authorities rather than ICE. As this Note argues, this type of enforcement is preempted by federal labor law. Accordingly, this Note's discussion of Arizona's enforcement concerns is relevant to practitioners nationwide.

Previous scholarship discusses the relationship between federal and state employer sanctions laws. ⁿ³⁰ This Note furthers the scholarship by exploring how preemption doctrine applies to LAWA - the first state law crafted specifically to circumvent federal immigration law's preemption provisions. Preemption of employer sanctions laws by labor law is less well researched. ⁿ³¹ Michael Duff argues that state regulation of immigration rallies is preempted because immigration rallies are a protected by federal labor law. ⁿ³² This Note, by contrast, argues that state regulation of immigrant employment is preempted because employers use these regulations as pretext for committing a variety of labor violations against undocumented employees. ⁿ³³

II. Preemption by Federal Immigration Law: A Comprehensive Scheme of Regulation

A. Background
 
Congress first addressed the employment of undocumented immigrants with the Federal Immigration Reform and Control Act of 1986. ⁿ³⁴ IRCA makes it illegal for employers to knowingly hire or recruit immigrants without lawful work authorization ("undocumented immigrants"). ⁿ³⁵ IRCA also requires employers to complete an I-9 form for each hire, verifying that the individual was authorized to work in the United States. ⁿ³⁶ Before IRCA went into effect, the Immigration and Nationality Act penalized undocumented immigrants for their illegal entry into the U.S., but did not punish employers who hired these  [*424]  immigrants. ⁿ³⁷ Despite wide acceptance that jobs were a magnet for undocumented immigrants, the INA treated the employment of undocumented 

 

 

immigrants as a peripheral concern. ⁿ³⁸

Before IRCA, states regulated the employment of undocumented immigrants under the authority of their police powers. ⁿ³⁹ States typically asserted the preservation of employment opportunities for its own citizens as a justification for restricting the employment of undocumented interests. ⁿ⁴⁰ In DeCanas v. Bica, a landmark decision upholding a California state law prohibiting the employment of undocumented immigrants, the Supreme Court found this to be a legitimate state interest. ⁿ⁴¹ In dicta, the Supreme Court attempted to delineate the bounds of federal authority over immigration: Congress was concerned with "who should or should not be admitted into the country," and not with the employment of undocumented immigrants. ⁿ⁴²

Despite this powerful statement, DeCanas does not apply similarly to all state immigration regulations. Although LAWA imposes different sanctions than the California statute at issue in DeCanas, both laws regulate the same activity - the employment of undocumented immigrants. ⁿ⁴³ On the question of whether LAWA is preempted by federal immigration law,  [*425]  DeCanas is not dispositive, however, because it was decided prior to the passage of IRCA. ⁿ⁴⁴ The Supreme Court rested its decision in DeCanas on the fact that the INA did not concern the employment of undocumented immigrants. ⁿ⁴⁵ IRCA, by contrast, directly addresses the employment issue. ⁿ⁴⁶ The relevant question in determining whether IRCA preempts state employer sanctions laws is Congress's intent. ⁿ⁴⁷ As we seek to discover Congress's intent regarding preemption and IRCA, we consider the text of the statute, subsequent legislative action, as well as judicial decisions that shed light on the analysis.

B. Immigration Preemption Doctrine Applied to LAWA

1. Text of the Statute
 
As noted above, IRCA prescribes criminal and civil penalties on employers that knowingly hire or recruit undocumented immigrants. ⁿ⁴⁸ To prevent employers from taking advantage of the knowingly provision by intentionally failing to look into the status of employees, IRCA also requires employers to complete an I-9 form for each new hire, verifying that the individual was authorized to work in the United States. ⁿ⁴⁹ Additionally, and most importantly for this Note, IRCA contains a preemption clause:

 
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, recruit or refer for a fee for employment, unauthorized aliens. ⁿ⁵⁰
 
This clause clearly applies to and preempts state and local laws that impose civil or criminal penalties on employers for hiring undocumented immigrants. ⁿ⁵¹ LAWA, however, does not impose criminal or civil penalties  [*426]  for violation of its provisions. ⁿ⁵² Rather, it prescribes license suspensions and probations of increasing length each time the terms of the law are violated. ⁿ⁵³ Ultimately, it mandates license revocation for an employer who knowingly or intentionally employs an undocumented immigrant while on probation for a previous violation. ⁿ⁵⁴

On one reading, the exception to the preemption clause that allows "licensing and similar laws" expressly permits LAWA. After all, LAWA is facially a licensing law. ⁿ⁵⁵ A House Report on IRCA supports the view that Arizona's decision to suspend and revoke licenses to employers that hire undocumented immigrants is lawful. This report mandates that the penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. ⁿ⁵⁶

 
Under this reading, because LAWA mandates the revocation of a business license 

 

 

from an employer who hires undocumented immigrants, it is a licensing law.

Another view is that, although the text of the preemption clause appears to authorize Arizona's law, a closer look at the circumstances surrounding IRCA and the practical results of LAWA suggests that Congress intended IRCA to preempt laws such as LAWA. First, LAWA operates more like an immigration regulation than a licensing law. Although it imposes conditions a business must satisfy to retain a license, it is unlike any licensing law that existed prior to the implementation of IRCA. Prior to IRCA, licensing law referred to a law about licensing that "sets forth conditions and qualifications governing the issuance of a particular license to a particular type of business," such as a medical license or a childcare license. ⁿ⁵⁷ LAWA is not a licensing law that applies to a specific type of business, but a law about immigration and undocumented workers. Rather than setting standards by which the state expects a particular type of business to operate, LAWA imposes a broad rule that business  [*427]  cannot hire undocumented immigrants. The purpose of this rule is not to improve the quality of services employers provide to the public, but to discourage immigration into the state. In this way, it functions like an immigration regulation, designed post-IRCA to fit into the preemption savings clause. ⁿ⁵⁸

Second, LAWA's penal provisions are incompatible with the text and spirit of IRCA's preemption clause. The preemption clause bars states from merely imposing fines against employers that break the law. This is incongruous with an interpretation of IRCA's preemption exception that lets states strip employers of their business licenses - essentially imposing a "death penalty" ⁿ⁵⁹ by putting employers that break the law out of business. Such an interpretation would render the preemption clause, which prohibits states from imposing criminal or civil sanctions on businesses, meaningless. ⁿ⁶⁰

Finally, IRCA must be read in conjunction with the larger body of immigration law. It has long been accepted that only Congress has the authority to determine who gets to stay in the U.S. and who has to leave. ⁿ⁶¹ Since IRCA's preemption clause must be read in light of this general proposition, licensing penalties are permitted only when the federal government has determined that an employer violated the law. ⁿ⁶² The House Report cited above supports this interpretation. "The penalties contained in this legislation ... are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation." ⁿ⁶³ The federal government determines when a person has violated this legislation - namely, IRCA. Accordingly, for a state to suspend, revoke, or refuse to reissue a license to a person found in violation of some other law, the federal government must first have found that person in violation of IRCA.

 [*428]  LAWA allows the state to suspend or revoke licenses even if the federal government has not made such a determination. ⁿ⁶⁴ This violates the maxim that Congress determines who stays in the U.S. by allowing Arizona, pursuant to LAWA, to create a separate state adjudicatory process in which state court judges determine whether an employer has violated federal immigration law. The results of this separate system further suggest that Congress intended to preempt state employer sanctions laws. Allocating such power to state judges undermines federal power to regulate immigration. The scheme also impairs IRCA, which sought to create a comprehensive federal system with procedures for determining which employers knowingly hired unauthorized immigrants by introducing non-uniformity. ⁿ⁶⁵ The fact that Arizona is not the only state with an employer sanctions law heightens the risk of obstructing federal enforcement of IRCA. ⁿ⁶⁶ Federal immigration law is sufficiently broad to call into question the notion that there is room for the fifty states to intervene with fifty different immigration laws. ⁿ⁶⁷ It is doubtful that Congress intended its seven-word preemption clause to give states the opportunity to weaken the newly created regulatory scheme.

2. Judicial Decisions...
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