Obama challenge to Arizona immigration law could backfire
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Obama challenge to Arizona immigration law could backfire

June 22, 2010, 10:14 pm
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The law has already been upheld by the Court of Appeals for the 9th circuit
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Obama challenge to Arizona immigration law could backfire

By Reynold N Mason Esq.

The Obama administration has filed a legal challenge to an Arizona law that imposes penalties on businesses that hire illegal workers.  This is not a challenge to the notorious SB 1070 that led to protests and boycotts when it was enacted in April.  This law known as LAWA (legal Arizona workers Act) has been in effect since January 2008.  Georgia Colorado and Oklahoma have similar laws. Many see this challenge as an attempt by the Obama administration to reassert itself into the immigration debate, and wrest control over immigration policy from states that, with increasing frequency, are enacting what can be termed anti- immigrant laws.

The administration is arguing that immigration policy should be national and uniform not a patchwork of different state and local laws.  But because of a failure of the Federal government to pass effective immigration laws, states have moved into the breach and have been passing increasingly restrictive immigration laws.   After the failure of the Bush immigration plan in 2007, 1562 immigration laws were either passed or considered by states, compared with only 300 in 2005 and just 570 in 2006.  With Immigration now off the legislative agenda, perhaps until after the November elections, states have lost patience with the slow pace of Federal immigration reform and have taken matters into their own hands.   In Border States, where the impact of illegal is most acutely felt, laws have been enacted limiting access to state services, such as welfare and driver licenses to legal residents only.   Passions are at fever pitch on both sides of the issue and the Administration, sensing an opportunity, has decided to throw its lot in with those who want more liberal immigration laws.  The problem for Obama is that in poll after poll Americans have expressed overwhelming support for the Arizona law and, in other states,  voters  are demanding passage of similar laws. 

Oklahoma, Colorado ,Texas and Georgia to name a few, have laws on the books every bit as tough as Arizona’s.  Residents of a small city in eastern Nebraska voted Monday to banish illegal immigrants from jobs and rental homes, defying an earlier decision by the city’s leaders and setting off what is all but certain to be a costly and closely watched legal challenge. In Fremont , a meat-packing town of about 25,000 people, unofficial results from The Associated Press late Monday showed that 57 percent of voters approved a referendum barring landlords from renting to those in the country illegally, requiring renters to provide information to the police and to obtain city occupancy licenses, and obliging city businesses to use a federal database to check for illegal immigrants (NYT, June 21, 2010.)

So why does Obama swim against the rising tide of support for stricter immigration laws?  Why challenge the Arizona law now, when it has been in effect for over a year and a half?  Clearly, he has made a political calculation.  His failure to deliver on his campaign promise of immigration reform has left Hispanics disillusioned and disaffected.   He fears that he will lose their support which has reached critical mass in larger states such as Texas, California and Florida.  The question raised by the administration’s imposing itself into the immigration quicksand  at this juncture is, should the court uphold the Arizona law, then other states would know for sure they can pass laws restricting immigration in their jurisdictions.  It would have been wiser to let the ACLU, the NAACP and other groups carry water for the administration. Obama has everything to lose and nothing to gain by challenging LAWA at this juncture.

There is a very good chance that the law will be upheld.  LAWA, ironically, was signed into law by Janet Napolitano, now Obama’s homeland secretary, when she was governor of Arizona.  It requires every employer to use E-verify, a Federal data   base,  that can check authority to work. And employers who hire illegal workers are fined and, may lose their business licenses for a second offense.  The law has been challenged and been upheld  by  the  9th Circuit Court of Appeals.( Arizona contractors et al  against  Janet Napolitano).  The problem for the administration is its inaction and perceived indifference to immigration policy over the last several years.  Standing mute in the face of more than 1500 laws regulating  immigration, allowed states to make immigration policy helter skelter.   Under the supremacy clause of the US constitution, Federal law supersedes any state law that is inconsistent with or interferes with enforcement of Federal law.  But not if the Federal government has stood by idly.  Inaction or indifference gives states the right to pass laws to protect their vital interests where the Federal government has failed to do so.

Furthermore, states can pass laws so long as they are not an obstacle to the working of Federal law.  And herein lies the problem for the administration.   Federal authority is not absolute. States can pass laws that are in line with the Federal law.  LAWA is nothing more than Arizona doing the job of that Federal  government should be doing to enforce its own employer sanctions, which penalizes businesses for hiring illegal workers. The Federal government, from time to time, will raid a meat packing plant or a car wash but, by and large, it does not enforce its own laws. In this situation, the Arizona law is perfectly constitutional.  Were a state to pass a law regulating air traffic or setting up new minimum wages, it would clearly be superseded by Federal law because the FAA is all over the issue of air traffic; its investigators  appear at every airline accident; their intention to exclude the states from passing any law regulating aviation could not be clearer. That is not the case with immigration.  States across the country are frustrated by the do-nothing attitude of the Federal government, and have taken immigration enforcement into their own hands.  LAWA is an aid, not a hindrance to the federal objective to reduce the demand for illegal labor.  In 1976, The Supreme Court upheld a California law prohibiting the hiring of illegal workers.   In that case, Decanas v Pica, justice Brennan said:    “courts have never held that every state enactment that in any way deals with aliens is a regulation of immigration and thus, per se, preempted by the supremacy clause…..” In addition, the Federal government under the 287(g) program allows state  and local law enforcement officers to arrest and detain illegals on behalf of the Federal  government.

The Arizona law, while it does regulate the hiring of illegal workers is consistent with the purposes of Federal law.  It is a valid exercise of Arizona’s authority to regulate the hiring of illegals within its own borders because the Federal government has failed to act. The law has already been upheld by the 9th Circuit Court of Appeals and similar laws have, in the past, been upheld in other states. The Obama administration, I think, will be disappointed by the outcome of their challenge to LAWA.

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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