September 17, 2007

Federal Lawsuit Challenges Arizona Employer Sanctions Law

In a lawsuit filed in federal court on Tuesday, civil rights coalitions, including the American Civil Liberties Union (ACLU), the Mexican American Legal Defense and Educational Fund (MALDEF), and the National Immigration Law Center (NILC), claimed the “Legal Arizona Worker Act” violates the U.S. Constitution and threatens employers with permanent loss of business licenses based on invalid new state requirements. Accordingly, they filed a suit against the state challenging Arizona’s attempt to enact laws regulating immigration that intrude on the federal government’s plenary power and provide less protection to employers and workers than federal laws. The suit asserts that new Arizona law violates the Supremacy Clause of the U.S. Constitution because it is preempted by the federal government’s exclusive authority to regulate immigration. The new law also violates the Fourteenth Amendment to the U.S. Constitution because it deprives employers and employees of due process of law. The coalitions aptly pointed out that employment authorization status is distinct from citizenship or immigration status under federal law.

The Arizona law requires employers to verify the employment eligibility of an employee through a federal verification database­--Basic Pilot Program, recently renamed “E-Verify,” an program that covers approximately 17,000 employers nationwide. Under federal law, participation in the program is voluntary, not mandatory. Additionally, delinquent employers would face sanctions beyond what the federal government allows.

Moreover, E-Verify has been plagued with problems, including failing to identify legally authorized workers, due to its reliance on the error-ridden databases of the Social Security Administration and the Department of Homeland Security. Businesses might be tempted to terminate employees who are not approved by the E-Verify system rather than risk the fines and penalties associated with failing to comply with the Arizona law. Consequently, such actions by employers could prompt discrimination suits against them.

The civil rights advocates warn that if states such as Arizona are allowed to enact their own immigration laws, businesses and their employees would face a myriad of contradictory and irreconcilable requirements based on local politics and conditions. This, in turn, would further hinder the implementation of an effective national immigration policy.