Supremes will soon consider constitutionality of Arizona's illegal-immigrant law

http://www.npr.org/2012/04/25/151281643/controversial-arizona-law-reaches-supreme-court

This is one state statute that stands out from the crowd by virtue of having so far survived all legal challenges is the Legal Arizona Workers Act. In December 2007, a federal judge considered whether or not the new law could withstand a typical constitutional challenge. [See Arizona Contractors Association v. Napolitano, 2007 U.S. Dist. LEXIS 96194 (D. Ariz. Dec. 21, 2007)] When the plaintiffs initiated their challenge to the statute, the judge initially held that, since county prosecutors were charged with enforcing the law, they were the proper defendants in the suit. The plaintiffs, therefore, were dismissed for lacking standing. Undeterred, they returned to court, seeking to cure the standing issue and obtain a temporary restraining order (TRO). The court this time ordered a hearing on the motion for a TRO, which would prevent enforcement of the law pending a final resolution of their constitutional challenge. The federal judge declined to issue the TRO.

During the subsequent 12 months, the matter proceeded to hearing, and the district court dismissed the Arizona Attorney General for lack of subject matter jurisdiction, because he lacked the authority to bring enforcement actions. The court ruled in favor of the remaining defendants on the merits. It held that the act is not expressly pre-empted by IRCA because the act is a licensing law within the meaning of the federal statute's savings clause. It held that neither the act's sanction provisions nor the provision mandating use of the federal government's E-Verify identification system was inconsistent with federal policy, and thus they were not impliedly preempted. Finally, the court held that the act did not, on its face, violate due process because employers' due process rights were adequately protected.

In November 2009, the Maricopa County Attorney filed the first employer-sanctions suit under the act. The civil action alleged the Scottsdale Art Factory's manager, Michelle Hardas, allegedly hired illegal labor by using a “subcontractor” which was in reality an employee who was not authorized to work in the United States. The complaint stated, “Hardas has used the provision of limited liability companies, designed to protect legitimate businesses, as a way of gaining an unfair economic advantage over legitimate businesses by continuing to hire employees who are not authorized to be employed in the United States.”

The suit asks the court to order the defendant to fire all illegal aliens and comply with the law. It also prays for the penalty of a ten-day suspension of the company's license to do business. County Attorney Andrew Thomas stated, “This first employer-sanctions case is the capstone on our office's efforts to stop illegal immigration. The idea that state and local law enforcement can successfully and legally combat illegal immigration has moved from a provocative theory a few years ago to reality today.” [http://www.mcaodocuments.com/press/20091118_a.pdf]

For more on this, see my EMployment Law Answer Book:

http://www.aspenpublishers.com/Product.asp?catalog_name=Aspen&product_id=0735582033&cookie_test=1&utm_source=GAN&utm_medium=affiliate&utm_content=AspenPublishers&utm_campaign=k186085