Editor: It has been a few months since we last visited immigration reform, especially in the context of the two Arizona laws, the 2007 Legal Arizona Workers Act, or LAWA, and the 2010 Support Our Law Enforcement and Safe Neighborhoods Act , commonly referred to as Senate Bill 1070. Bring us up to date.
Patrick: LAWA requires employers to use the federal E-Verify system to ascertain whether a prospective employee is authorized to work and penalizes the employer for knowingly hiring someone who is not. S.B. 1070 gives local law enforcement broad authority to check the immigration status of anyone where there is a "reasonable suspicion" that they are not in Arizona legally.
This summer, just days before implementation, the most controversial provisions of S.B. 1070 were preliminarily enjoined by Federal District Judge Susan R. Bolton. The injunction is now on appeal to the Ninth Circuit, which heard oral argument in November.
The U.S. Supreme Court heard oral argument in Chamber of Commerce v. Whiting, a case that arises out of LAWA, on December 8, 2010. The matter is one of the most important immigration cases to be argued before the Court in years, and one way or another will help steer future immigration policy.
The states, understandably, are beyond frustrated. We have a system that is not working and the argument that the federal government is making - that states can't start creating immigration policy - is very important to be resolved by the Court. Since certiorari was granted in Whiting, other cases have ripened and we now have a conflict between the Ninth and Third federal circuits. In the Third Circuit case, Lozano v. City of Hazelton , the appeals court struck down a local immigration ordinance in a holding that reaches dramatically different conclusions from the Ninth Circuit in the Arizona case. So, while Lozano is not directly in front of the Court in the Whiting argument, it will be present in the background.
Editor: Please s et the argument in context for our readers.
Patrick: Although the 1986 Simpson-Mazzoli Immigration Reform and Control Act ("IRCA") generally preempts states from enacting their own laws governing employment eligibility verification, IRCA creates an exemption for state and local "licensing or similar laws." Arizona (as well as Hazelton, Pennsylvania) cleverly crafted its law to fall within that exception, which allows states to include compliance with federal immigration laws as a condition to maintain a state-issued business license. LAWA says that if an employer employs an unauthorized worker, its license to conduct business could be suspended or even revoked. It also requires Arizona employers to use the otherwise largely voluntary federal E-Verify system to check the status of prospective employees. The opponents of LAWA counter that the licensing component in LAWA is really just a ruse, that LAWA is an impermissible intrusion by Arizona into federally preempted immigration policy. Moreover, some argue that nothing in the licensing exception permits a state to impose its own E-Verify or eligibility verification requirements outside of federal mandates. Another strong argument for preemption, as the courts have found, is that immigration is the purview of the federal government and if different states are allowed to pass different laws, there will be chaos, confusion and a broken commerce system.
Notwithstanding these arguments, the Ninth Circuit upheld a district court ruling that LAWA fell within IRCA's "local licensing" exception, and the Supreme Court agreed to hear the case. Subsequent to that grant of certiorari, the Third Circuit heard Hazelton's attempt to use the "local licensing" exemption to impose restrictions on illegal immigrants and agreed that the licensing requirement was really a subterfuge. In its very strongly worded opinion, the Third Circuit doubted that Congress could have intended IRCA to allow for a patchwork of state and local employer compliance laws.
Editor: What was the tenor of oral argument in the Supreme Court?
Patrick: Justices Breyer, Ginsburg and Sotomayor expressed skepticism, if sometimes measured, of aspects of the Arizona law, while the Chief Justice and Justices Scalia and Alito appeared more generally supportive of the state statute. Justice Scalia was most vocal, asserting that though state immigration enforcement might not have been thought necessary at the time of IRCA's enactment, lack of federal enforcement in recent years had provoked such state action. However, Justice Anthony Kennedy expressed some concerns about the state law's potential conflicts with the federal enforcement scheme. Justice Alito raised a question about how the E-Verify system and the paper-based Form I-9 employment eligibility verification process worked together, possibly suggesting that the two processes and the legal protections they offer employers might not be fully compatible.
Interestingly, the case was heard by just eight justices. Justice Kagan was Solicitor General when the Court granted a petition to hear the matter, so she recused herself. With only eight justices hearing the case and no clear majority emerging from oral argument, it is possible that a 4-4 split could be reached. If this occurs, the Arizona law would stand without a written decision from the Court, though that result would not have any precedential effect beyond Whiting . If a majority is reached, of course we'd expect a written decision by July of next year. In the wake of the LAWA challenge, more questions involving state immigration statutes could be on their way to the high court, including a challenge to Arizona's more recent - and more controversial - immigration law, Senate Bill 1070, now pending at the Ninth Circuit Court of Appeals.
Editor: And whatever the disposition of Whiting and other forthcoming cases, they won't end the problem of immigration.
Patrick: The bigger issue will always be present, until we have a better level of immigration policy agreed to by our lawmakers. This President has said, as George W. Bush said, we need sensible comprehensive immigration reform in this country so that America's needs with respect to immigration, both in terms of enforcement and in terms of prioritizing what role immigration should play in developing our country.
Editor: Those who are in favor of the two Arizona bills are saying: if the federal government won't enforce its own laws, we'll find a way to do so until such time that there is comprehensive immigration reform.
Patrick: The perception of lawmakers and citizens in many states is that the federal government has not done enough to enforce the immigration laws. And that perception is given enormous support by the fact that there are no less than 11 million people inside the United States right now who either entered illegally, or entered legally but then overstayed or otherwise violated their status and shouldn't be here, but they are. Many of them are working and many of them are using identification documents that don't belong to them.
At the same time, it is ironic that the Obama Administration is the toughest enforcer we have seen in modern times. The federal bureaucracy has enforced laws that have resulted in the deportation of hundreds of thousands, approaching half a million, of undocumented individuals. It is also holding employers of illegal workers accountable and subject to criminal prosecution, and has commenced an aggressive auditing initiative that resulted in millions of fines against employers who have not hired unauthorized workers, but who made paperwork errors. Perhaps that was inevitable, because we have a system that doesn't work, because we don't have a verifiable, mandatory system for all employers to check the work eligibility of anyone they hire. Under the existing IRCA legislation, which was supported by and successfully pushed through by President Reagan, we allow someone to produce a social security card or a driver's license that looks real, and they can be put to work. Fifteen years ago, in a report for "60 Minutes," Morley Safer purchased such a phony document for 50 bucks on the street outside CBS to show how easy it is. Any new system has to have employment verification that works. In some respects, the 11 million people not in status here right now are the consequence of a verification system that doesn't work, rather than as a consequence of lax enforcement.
Editor: I am intrigued by the (rare) agreement of the editors of both the Wall Street Journal and the New York Times to endorse the DREAM Act.
Patrick: I thought that was fascinating. The National Law Journal also agrees and says, in a piece written by Vivian Berger of Columbia Law School, "The children of illegal immigrants should not suffer for their parents sins, they deserve a path to permanent residency."
Perhaps, in light of the unsuccessful efforts of both President Bush and President Obama to put through comprehensive reform, some people are coming to the conclusion that waiting for comprehensive immigration reform may be like Beckett's Waiting for Godot : it never arrives. The governors often feel the brunt of immigration systems not working, and so they forge ahead on their own. We ought to figure out the key ingredients of reform, whether it is additional enforcement, an employment verification system, or more intelligent, sensible immigration opportunities for people who would help America meet its needs, whether for scientists and engineers or agricultural workers. Maybe it makes more sense to try to solve these problems in a piecemeal fashion. But some say that the topic is still too volatile for Members and Senators, facing elections in 2012, to do it piecemeal. I am not a political scientist, but I would suggest that, if there is any piece of legislation that might garner the broadest appeal to the decency of America, it should be the DREAM Act.
Editor: But ultimately there was not enough momentum.
Patrick: The House of Representatives passed the DREAM Act on December 8. After some deferrals in the Senate, the DREAMAct did not advance when a motion to end debate in that body failed on December 18. I am sure that there were Senators who were supportive of the DREAM Act in principle but who were not able to resist holding it hostage to additional provisions dealing with whether or not we should let more, less, or different kinds of people in; whether we should make it easier to deport people, or give people facing deportation opportunities to show they deserve special ameliorative consideration.
Those areas are conversations worth having, but the DREAM Act is about a very narrow, select group of people. It is about kids who were brought here by their parents when they were young. They didn't have any choice in the matter and are now young adults or teenagers looking for an opportunity to move forward. The Act has built into it all sorts of filters that make sure that we are not taking somebody with a criminal track record, or somebody that doesn't have good moral character, and just giving them a green card. They have to go to school and either finish two years of college, or join the military and receive an honorable discharge before they can be eligible for the conditional path to the green card.
Editor: Maybe Obama should see if Bowles and Simpson are ready to take on another assignment?
Patrick: Fascinating idea! The kind of leadership you are suggesting needs to come from the Republicans. After the 2010 election, it is clearer than ever that the Democrats are not in a position to advocate for sensible immigration reform.
Jimmy Carter talked about immigration reform and was essentially laughed out of the conversation. But President Reagan was able to get passage of the greatest legalization/amnesty in the history of the country. He was tough on enforcement and yet sensible on amnesty. It was Reagan's leadership that helped get that through. Now is the time for a strong, confident group of Republicans to say that we need enforcement at the highest level, but we also need immigration policies that make sense for America. That kind of conversation can easily I think be led by confident, strong Republicans. Back in 2003, when the DREAM Act was first being discussed, it passed a Republican-led Senate Judiciary Committee by a 16-3 margin, and had the support of several very conservative GOP senators.
Editor: As always, a fascinating conversation.
Published January 3, 2011.
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