Immigration enforcement: States can go after employers

By Father Tom Joyce, CMF| comments | Print this pagePrint | Email this pageShare
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Last week the U.S. Supreme Court ruled in a 5-3 decision that an Arizona law targeting companies that employ undocumented workers passes constitutional muster.

During the administration of George W. Bush, immigration enforcement stressed factory raids that rounded up undocumented workers and separated out those that had used counterfeit or stolen documents to get work. This group was sent to jail and eventually deported, while the others were subject to deportation hearings. But there was a blowback that made factory raids unpopular even to many who support tough enforcement.

At issue wasn’t the havoc and harm caused to immigrant families, but that fact that the employers who routinely hire undocumented workers usually got a pass or a slap on the wrist.

Arizona tried to remedy this—not so much to make the situation fairer but to further discourage the undocumented from coming and encourage them to leave. The Arizona Legal Workers Act would punish employers who hired the undocumented and required the use of the E-Verify system of the Social Security Administration to check on new hires. Those who ignored the law repeatedly would have their licenses to do business in the state revoked.

The Supreme Court decision in favor of the Legal Workers Act indicates that states do have some rights in enforcing immigration law. Commentators immediately read the decision in the context of the more controversial Arizona law wending its way through federal court—SB1070, which extends the power to detain undocumented merely on suspicion of their status. The anti-immigration lobby is heartened by the decision and new state initiatives can be expected.

But it’s doubtful that the recent decision indicates where the Supreme Court will come down on SB1070. Arizona’s employer sanction bill dealt with the state’s right to license businesses; SB1070 mandates enforcing federal law, which the feds jealously guard as its sole prerogative.

The Obama administration sided with the Arizona Chamber of Commerce, which brought the suit opposing the Legal Workers Act, opening the administration to criticism from the proponents of the bill. Proponents say the law only copies the Immigration and Custom Enforcement’s new strategy of going after the employer. (See Arizona Republic.)

Under Obama, factory raids may be out, leading anti-immigration advocates to argue there is no enforcement, even though the number and rate of deportations is higher under Obama than it was under Bush.

In addition to the Secure Communities program, ICE also goes after employers in what is known as “silent raids.” Instead of showing up at a business with guns and dogs, ICE comes with accountants and book-keepers to look at its hiring documents. If they come up with irregularities, the employer must fire the undocumented or face penalties. But sometimes the feds come up with tax irregularities that might send the employer to prison.

The New York Times tell of an Arizona Mexican restaurant chain whose executives face hard time, while the judge dismissed the undocumented workers to the mercies of immigration court where some have a good chance of staying in the country. Their employer, however, has to answer to the IRS.  Some state legislators are getting ideas of new bills like the Arizona law upheld by the Supreme Court.