Judge refuses to block employer sanctions law

Arizona’s new employer sanctions law will take effect as scheduled Jan. 1, following back-to-back federal court refusals to delay its implementation.

Judge Neil Wake on Friday rejected a request by business groups and others to bar the state from implementing the law while its constitutionality is litigated.

Just hours later, the 9th U.S. Circuit Court of Appeals refused an emergency request to second-guess Wake’s ruling and keep the law from being enforced.

“Those who suffer the most from unauthorized alien labor are those whom federal and Arizona law most explicitly protect,” Wake said.

He added that challengers to the law’s scheduled implementation have not proved they would suffer any hardship if it takes effect as planned Jan. 1.

Julie Pace, one of the lead attorneys representing those challenging the law, said the Circuit Court denial leaves her clients without legal options until at least Jan. 16. That’s when Wake will consider the latest legal attacks to the law’s validity.

The law makes it illegal to knowingly hire undocumented workers. Offenders could have all their state licenses to do business suspended or revoked.

Wake pointed out the county attorneys who would investigate complaints against employers all said in court they would not file charges against any violators before Feb. 1. Wake said that gives him time to consider the legal arguments of the groups who contend the statute is unconstitutional.

Nor was Wake convinced companies would suffer from the other requirement of the law, that they check the legal status of new employees through the federal government’s E-Verify system. He said their attorneys offered only “sweeping generalities” of harm, mostly related to the cost of using the program.

Wake pointed out that none of the groups behind the legal challenge claim they don’t have computers or Internet access.

“The only cost is employee time in learning the program … and assisting new employees who wish to communicate with the federal government to resolve out-of-date government records,” Wake wrote in his 29-page order. “That would be a few hundred to a few thousand dollars a year for the large majority of employers.”

Wake acknowledged that there is a debate over whether the benefits of having undocumented workers in this country, including lower labor expenses for employers, outweigh the costs.

But he said that is a decision not for him but for elected officials. And he said both Congress and now the Arizona Legislature have decided that the detrimental effects of illegal immigration “prevail over all who benefit from unauthorized alien labor.”

As an attorney for many of the business groups challenging the law, Pace was hoping for relief from the 9th Circuit, but that court refused to reverse Wake’s decision late Friday.

Pace said the logic Wake used in refusing to keep the law from taking effect in the interim is flawed. She was particularly critical of his conclusion that poor workers would be affected if the law is stayed. “He didn’t cite any evidence to support his conclusions,” she said.

Pace said the judge based his decision on the consequences of illegal immigration nationwide, and not specifically to Arizona.

“Obviously, the court has a perspective,” she said.

One basis for the challenge is language in the federal Immigration Control and Reform Act of 1996 that bars state and local governments from imposing civil and criminal penalties on employers who hire undocumented workers. But Wake said that law allows states to use “licensing and similar laws” to punish those hiring people not here legally.

Wake also rejected contentions of challengers that an exception for states to take away licenses applies only if a firm has first been found guilty by a federal hearing officer. He called that “wholly without textural basis in the statute.”

Opponents still have one request for a restraining order before the Court of Appeals. It seeks to stay enforcement while a newly filed lawsuit — this one naming the county attorneys — gets a hearing Wake has scheduled for Jan. 16.

What happens next

• The law making it illegal to knowingly hire undocumented workers will take effect Jan. 1.

• On the same day, employers also are supposed to begin verifying the legal status of new workers through a federal database, though there is no penalty for failing to comply.

• U.S. District Court Judge Neil Wake will hear legal arguments on the constitutionality of the law Jan. 16.

• Whichever side loses will seek review by the 9th U.S. Circuit Court of Appeals and, ultimately, the U.S. Supreme Court.