When Congress adopted the modern framework for compelling employers to hire only citizens and foreign nationals legally authorized to work in the U.S. as part of immigration reform in 1986, lawmakers made one thing perfectly clear — the federal government would have the sole right to enforce these employment laws and to punish businesses who knowingly hire illegal immigrants.
The idea that state and local governments shouldn’t tread on this federal domain had been universally accepted for the past two decades. Later changes in federal statutes allowed states to crack down on immigrants who illegally request welfare aid and also approved federal training for local police to arrest illegal immigrants, but employer sanctions stayed in the hands of federal investigators and prosecutors.
The failure of federal government to effectively assure legal employment practices, and to prevent a new massive wave of illegal immigration, has changed the mood of the country and Arizona in particular since the terrorist attacks of Sept. 11, 2001.
Many people are clamoring for state and local governments to step in, which culminated Thursday in bi-partisan passage by the state House of Representatives of a new state employer sanction plan under HB2779. State Rep. Russell Pearce, R-Mesa, a leading architect of the bill, argues the plan would legally bypass the 1986 federal law by tying penalties against employers to a written affidavit that every business would have to file by Jan. 1.
In essence, employers would have to promise in writing they don’t knowingly hire illegal immigrants, and they would face a felony conviction and serious fines if a county prosecutor could prove a business violated that promise.
But HB2779 makes it clear that Arizona would openly defy Congress’ intent in 1986 with the simple declaration, “An employer shall not knowingly employ an unauthorized alien.”
We would never suggest that employers should escape justice for intentionally hire illegal workers by refusing to ask for proper identification, helping them to falsify records or paying them cash under the table. But the truth is relatively few employers operate this way. Most businesses are trying to follow the rules in good faith, but they don’t have the training or skills to spot fraudulent driver’s licenses and other identification. In most cases, private businesses are barred by federal law from questioning a potential employee any further once presented with such documents.
HB2779 would seek to remedy that issue by “encouraging” employers to use a federal database called the Basic Pilot Program to verify someone’s legal status. But as we noted on these pages Feb. 4, the Basic Pilot Program has been plagued with false data and routinely fails to catch illegal immigrants using stolen identities.
While House leaders claim use of the Basic Pilot Program would remain voluntary, the bill mandates enrollment for state agencies, and every county and local government as well as any business that does work for them. That would sweep up a huge number of Arizona’s 120,000 employers, when the program only has 10,000 businesses enrolled nationwide.
We won’t be surprised if HB2779 becomes law. But assuming the plan somehow survives the inevitable court challenge, it will be nearly impossible for the state to prove illegal immigrants have been hired “knowingly” until a reliable, tamper-proof employment identification card is available.
Just a reminder, the state Senate already has passed a bill that would forbid Arizona from making improvements to state driver’s licenses that could fulfill that role.