S.B. 1070 Section 5(C) provides that it “is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Ariz. Rev. Stat. Ann. § 13-2928(C) (2010). Violation of this provision is a class 1 misdemeanor, which carries a six month maximum term of imprisonment. Ariz. Rev. Stat. Ann. §§ 13-2928(F), 13-707(A) (1) (2010). Thus, Section 5(C) criminalizes unauthorized work and attempts by illegal aliens to secure such work.
The legal principal that the historic police powers of the States includes the power to regulate the employment of unlawful aliens has previously been recognized in Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2009), cert. granted, and Chamber of Commerce of the U.S. v. Candelaria, 130 S. Ct. 3498 (2010). Therefore a presumption of non-preemption exists as to § 5(C). Judge Paez writes : “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 129 S. Ct. at 1194.
The controlling case for Paez's inquiry is National Center for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir. 1990), reversed on other grounds, 502 U.S. 183 (1991). That is because the Ninth Circuit has previously reviewed the Immigration Reform and Control Act of 1986 [IRCA] legislative history and Congress’ decision not to criminalize unauthorized work.
The question in National Center whether the INA, through 8 U.S.C. § 1252(a), authorized the Immigration and Naturalization Service [INS] to promulgate regulations which "imposed a condition against employment in appearance and delivery bonds of aliens awaiting deportation hearings." In deciding National Center the Ninth Circuit carefully reviewed the history of employment-related provisions in the INA’s legislative scheme—including the legislative history of the IRCA amendments.
In National Center the Ninth Circuit's conclusion was that concluded that "[w]hile Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals . . . Congress quite clearly was willing to deter illegal immigration by making jobs less available to illegal aliens but not by incarcerating or fining aliens who succeeded in obtaining work. "
Footnote 17 of Judge Paez's opinion places the issue into context. "We find it particularly relevant here that during the hearings which shaped IRCA, the Executive Assistant to the INS Commissioner stated that the INS did “not expect the individual to starve in the United States while he is exhausting both the administrative and judicial roads that the [INA] gives him.” National Center, 913 F.2d at 1368.
The Court agreed with Arizona that the ultimate legal issue presented in the SB1070 differs from the one presented in National Center. Paez writes that "Nonetheless, we do not believe that we can revisit our previous conclusion about Congress’ intent simply because we are considering the effect of that intent on a different legal question." The majority found that SB1070 §5(C) is likely preempted Therefore, our decision since the state law conflicts with what the Ninth Circuit previously found to be Congress’ IRCA intent.
Congress' intent was for the onus to be placed on employers and not employees. 8 U.S.C. § 1324a, the relevant portion of the IRCA, demonstrates that intent. Paez writes:
Section 1324a establishes a complex scheme to discourage the employment of unauthorized immigrants—primarily by penalizing employers who knowingly or negligently hire them. The statute creates a system through which employers are obligated to verify work authorization. The verification process includes a requirement that potential employees officially attest that they are authorized to work. 8 U.S.C. § 1324a(b)(2). The statute provides that the forms potential employees use to make this attestation “may not be used for purposes other than for enforcement of this chapter and” 18 U.S.C. §§ 1001, 1028, 1546 and 1621. 8 U.S.C. § 1324a(b)(5). These sections of Title 18 criminalize knowingly making a fraudulent statement or writing; knowingly making or using a false or stolen identification document; forging or falsifying an immigration document; and committing perjury by knowingly making a false statement after taking an oath in a document or proceeding to tell the truth. This is the exclusive punitive provision against unauthorized workers in 8 U.S.C § 1324a. All other penalties in the scheme are exacted on employers, reflecting Congress’ choice to exert the vast majority of pressure on the employer side. (Emphasis added.)Congress' intent was not to criminalize employment. Paez reasons that 8 U.S.C. § 1324a(d)(2)(C) provides that:
[a]ny personal information utilized by the authorization verification] system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien.” This provision would prohibit Arizona from using personal information in the verification system for the purpose of investigating or prosecuting violations of S.B. 1070 Section 5(C). Subsection 1324a(d)(2)(F) provides in even clearer language that “[t]he [verification] system may not be used for law enforcement purposes, other than for enforcement of this chapter or” the aforementioned Title 18 fraud sections. (Emphasis added.)Subsection 1324a(g)(1) demonstrates Congress’ intent to protect unauthorized immigrant workers from financial exploitation—a burden less severe than incarceration. Subsection 1324a(e) provides for a system of complaints, investigation, and adjudication by administrative judges for employers who violate subsection (g)(1). "Congress required employers to repay any employee — including undocumented employees. Where Congress did not require undocumented workers to forfeit their bonds, we do not believe Congress would sanction the criminalization of work," Paez wrote.
Paez concluded "that the text of 8 U.S.C. § 1324a, combined with legislative history demonstrating Congress’ affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment, likely reflects Congress’ clear and manifest purpose to supersede state authority in this context."
The Ninth Circuit relied on the precedential value of Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988) regarding federal inaction and the implication of preemption.
"There is no federal preemption in vacuo, without a constitutional text or a federal statute to assert it. Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawn—not from federal inaction alone, but from inaction joined with action." Isla at 513.
In Isla Congress had withdrawn from all substantive involvement in the litigated field which was petroleum allocation and price regulation. In this case Paez finds that Congress has not substantially withdrawn from a regulatory scheme regarding the employment of unlawful aliens.
"We are also guided by the Supreme Court’s recognition," Paez says," even before IRCA, that a “primary purpose in restricting immigration is to preserve jobs for American workers.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984). As Arizona states, “Section 5(C) clearly furthers the strong federal policy of prohibiting illegal aliens from seeking employment in the United States.” The Supreme Court has cautioned, however, that “conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” Wisconsin Department of Industrial, Labor, and Human Relations v. Gould, 475 U.S. at 286 (quoting Motor Coach Employees. v. Lockridge, 403 U.S. 274, 287 (1971))."
Paez then harmonizes the cases of Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000). and American Insurance Association v. Garamendi. 539 U.S. 396 (2003) "In Crosby, the Court explained that “a common end hardly neutralizes conflicting means.” 530 U.S. at 379-80." Similarly, in Garamendi, the Court explained that a state law was preempted because “[t]he basic fact is that California seeks to use an iron fist where the President has consistently chosen kid gloves.” 539 U.S. at 427. The problem with a state adopting a different technique in pursuit of the same goal as a federal law, is that “[s]anctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions . . . undermines the congressional calibration of force.” Crosby, 530 U.S. at 380. Paez offers a more in depth reading of Crosby and Garamendi in footnote 3.
Paez makes the distinction between Congressional intent and Arizona's statute. "In the context of unauthorized immigrant employment, Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work. By criminalizing work, S.B. 1070 Section 5(C) constitutes a substantial departure from the approach Congress has chosen to battle this particular problem." Since Congress did not intend to criminalize employment by the unlawful alien Arizona's SB1070 creates an obstacle to the regulatory scheme adopted by Congress.
Finding that this section, like §2(B) has a detrimental effect on the foreign affairs of the nation Paez went on to find that "the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 5(C) would not be preempted, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same."
Part five of this series will focus on Section 6 of SB1070.