Ruling on Pa. city's ordinance may impact employer sanctions, SB 1070 - East Valley Tribune: Business

Ruling on Pa. city's ordinance may impact employer sanctions, SB 1070

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Posted: Thursday, September 9, 2010 1:33 pm | Updated: 11:11 pm, Sat Sep 11, 2010.

A federal appellate court struck down a local ordinance in Pennsylvania aimed at illegal immigrants, potentially boosting the chances civil rights and business groups will be able to kill Arizona’s employer sanctions law — and potentially the state’s new immigration law.

In a unanimous decision, the 3rd Circuit Court of Appeals said Thursday it was illegal for city officials in Hazleton to forbid companies from hiring undocumented workers. They said such action is preempted by federal law.

The judges acknowledged that the Hazleton ordinance was built on an exemption in federal law that allows state and local governments to punish companies by taking away their business licenses. That is the same exemption cited by Arizona lawmakers in enacting the 2007 law.

But Judge Theodore McKee said that does not mean state and local governments can set up their own systems to determine whether companies are hiring undocumented workers.

“If Hazleton’s ordinance is permitted, then each and every state and locality would be free to implement similar schemes for investigating, prosecuting and adjudicating whether an employer has employed unauthorized aliens,’’ McKee wrote for the court.

“A patchwork of state and local systems each independently monitoring, investigating and ultimately deciding — all concurrently with the federal government — whether employees have hired unauthorized aliens could not possibly be in greater conflict with Congress’ intent for its carefully crafted prosecution and adjudication system to minimize the burden imposed on employers,’’ the judge continued.

Attorney David Selden, who represents the Arizona Chamber of Commerce, said that directly conflicts with rulings of both a federal judge in Phoenix and the 9th Circuit Court of Appeals. They upheld the Arizona law as fitting within the licensing exemption even though it left the determination of a worker’s legal status to a state judge.

But a spokeswoman for the Attorney General's Office, which will be defending Arizona's employer sanctions law before the U.S. Supreme Court on Dec. 8, said there are some differences between  the Hazleton ordinance and the state statute.

``It is by no means certain that the 3rd Circuit's decision will affect the outcome of the Arizona case,'' the statement read.

Under the Arizona law, a company found guilty in state court of knowingly hiring an undocumented worker could have its license suspended for up to 10 days. A second violation within three years means automatic revocation, effectively putting the firm out of business.

The conflicting appellate ruling now will force the U.S. Supreme Court to spell out in detail exactly how far states can go in regulating immigration, an area that has traditionally been reserved for the federal government. The high court is set to review the Arizona law on Dec. 8.

Whatever the justices rule likely will affect more than whether Arizona can punish employers for hiring undocumented workers.

It also could determine the ultimate fate of SB 1070. That measure, approved earlier this year, contains several new law designed to give state and local police more power to question and detain suspected illegal immigrants.

A federal judge already has enjoined the state from enforcing several key provisions, concluding they likely are unconstitutional.

That decision will be reviewed in November by the 9th Circuit. But the appellate judges may wait to see what the Supreme Court does in the employer sanctions case before ruling.

Specific provisions of the ordinance and both Arizona laws aside, there is another significant parallel: They were enacted for the same reasons.

McKee said Hazleton officials, in approving the ordinance, concluded that illegal immigrants "were to blame for certain social problems in the city, and the federal government could not be relied upon to prevent such aliens from moving into the city, or removing them.''

Virtually identical arguments were made by state legislators in pushing Arizona's employer sanctions law and, more recently, SB 1070.

That theme has been echoed repeatedly by Gov. Jan Brewer, both in public statements and through her attorney who is defending SB 1070, saying the state needed to act because of the failure of the federal government to secure the border.

Thursday's ruling in the Hazleton case has another parallel with Arizona: Both the city ordinance and the state law require companies to use the federal government's online E-Verify system to determine if employees have a legal right to work in the country.

The 9th Circuit found no fault with that provision of the Arizona statute. But McKee pointed out that Congress, in setting up the system, made its use by companies voluntary.

"Despite its advantages, E-Verify also has significant problems,'' McKee wrote. He said that Hazleton, in mandating use of the system, "has placed a priority on deterring employment of unauthorized aliens, but failed to concern itself with the costs its ordinance imposes on employers and work-authorized aliens.''

The Hazleton ordinance, though, has something not present in either Arizona law: It prohibits landlords from renting to illegal immigrants. The appellate court struck that down, too, as preempted by federal law.

Omar Jadwat, an attorney for the American Civil Liberties Union, which also is challenging Arizona's employer sanctions law, agreed with Selden's assessment that Thursday's ruling is a victory for foes of the statute.

"What (the) Hazleton (decision) said what we've been saying all along, which is that exemption doesn't mean that states or cities have the right to pass independent, free-standing employer sanctions schemes,'' he said.

The ACLU also has its own separate lawsuit challenging provisions of SB 1070.

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