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Rocks & Hard Places
In a move few doubted was coming, a U.S. District Judge today ruled that Hazleton, Pennsylvania, and by implication, every other like minded burgh in the country, has no constitutional right to legislate or enforce its own immigration ordinances, on the grounds that only the federal government has the standing to ignore the laws of the land.
U.S. District Judge James Munley, in a 206-page 1-0 decision, struck down every provision of the Hazleton Township ordinance, passed last year, and copied or contemplated by hundreds of municipalities, which forbade local landlords renting to, or local employers employing, those persons of dubious legality within the city limits.
An appeal by Hazleton is imminently expected in this quarter.
The Hazleton ordinance, along with the Beaufort County ordinance granting the county power to audit local employers' I9s and workforce, Colorado 1017 granting that state's Department of Labor the power to audit private employers, while legislating additional requirements beyond IRCA, and Arizona's recently passed Law mandating Basic Pilot/EEVS for all new hires, public or private in that state, effective January 1, 2008, are all attempts by non-federal domains to enforce laws largely unenforced by the only entity the Judge ruled has the authority to enforce those laws.
A significant portion of the American polity is going to be extremely annoyed by the rock and hard place of federal executive impotence, and federal judicial interference with state and local attempts to do what either the feds can not, or will not, do themselves. All of which puts employers between their own rock and hard place: Implement NOW the new procedures mandated by the sub-federal governments, and either already effective, or scheduled to take effect very soon, or wait in hopes that through the intervention of the ACLU, et al, stays will be granted in the short term, and legislations voided thereafter?
Another rock: Throughout most of the nation, and in the halls of Congress, only enforcement legislation has the votes to pass, but Hard Place: on the Federal level, "Comprehensive Reform" has been the order of the day. For those of you new to the issue, Comprehensive Reform is code for promised enforcement later, and amnesty now, predicated upon promised enforcement later, to be funded kind of like Social Security, which is in need of comprehensive reform, which many suspect can be deferred, with the FICA taxes gathered from amnestied immigrants.
Rock: Federal worksite enforcement ebbs and flows like the tides, generally reaching its fullest crest as the moon of Comprehensive Immigration Reform waxes over the Rotunda. The Lookout Monitor anticipates a slow ebb in the coming months, with an Easter Tide in 2008.
On the other hand, the ONLY thing which could resuscitate CIR prior to the next Congress might just be the outcry following this Judge's decision today. Of course, that outcry could also lengthen the vacation of this legislative session, CIR being the 2nd 3rd rail of current American politics, after social Security reform. That's kind of a hard place.
Some Likely or Possible Futures
1) Employers are already complying with Colorado 1017, and the likelihood is that they will have to gear up for Arizona verification requirements, and other states soon to follow. As of current date, Arizona imposes Pilot 1/1/2008 - A big plus for Pilot, as it's another prod toward what seems a universal mandatory by 2010 or so.
2) We could very well see civil disobedience on the part of municipalities, as a result of today's ruling, with one, somewhere, the vast majority of its citizens in support of it, just flat-out ignoring the ruling and enforcing anyway.
3) Expect a rash of applications from local law enforcement requesting deputization from the feds.
4) If the state attempts are also struck down, the slumbering issue of states' rights, asleep since Timothy McVeigh shifted the palatable discussion away from such shocking ideas, will awaken, adding to the crystal ball murkiness for November 2008.
5) Political pressure will mount for sensitive-district congressmen to DO SOMETHING. This will translate into congressmen pressuring the executive to pressure DHS to ramp up worksite enforcement, especially in sensitive locales.
6) It is possible that the President, in a state of high dudgeon over the complete lack of party support for his comp. imm. reform, will call off the ICE dogs altogether, though highly unlikely.
7) Be all of which as it may, Congressmen - especially the freshmen Democrats - will make very nice enforcement hawk noises, with appropriate invectives toward the judges, while they bend themselves into pretzels to keep immigration reform bills OUT OF THEIR CHAMBERS until January 2009, at the earliest.
State of the Union Skirts Reform Details
By Diane Adams
In his annual State of the Union speech, President Bush was expected to make
comprehensive immigration reform the centerpiece of his 2007 initiatives.
The President did discuss immigration reform, but what was surprising was
the lack of a detailed plan to approach an issue that is becoming
increasingly divisive and tumultuous for Americans. Everyone agrees that
immigration reform is necessary, what we need to know is what our lawmakers
intend to do about the issue.President Bush, in a sketchy mention of specifics for immigration reform,
suggested a temporary guest worker program, while denying that amnesty is on
the agenda.
Perhaps it depends on what you would call amnesty, as Bush's proposal likely
can be translated as amnesty with a few rough edges. It seems that the
President would back a bill that fines illegal immigrants, forces them to
pay back taxes they might owe, but ultimately puts them on a path towards
citizenship.
While many in Washington feel that the new Democratic Congress presents an
opportunity for comprehensive legislation to pass, it might be that the
Democrats themselves are too at odds on the issue to pass substantial
reforms. The joint session, having made noises of agreement with several
proposals from the President, seemed to lack the spark of true enthusiasm
when immigration was mentioned.
In the meantime, America, like its lawmakers, continues to divide over the
issue. So much so that cities and counties nationwide are busier than ever
developing their own immigration measures. This practice, while questioned
legally by the ACLU and other activist rights groups, makes for a tangled
jumble of immigration laws that can vary within a few miles of each other,
leaving businesses across the country standing on shifting sand when it
comes to employment procedure.
Your hiring practice in New York, for example, must be very different from
your hiring practice in Beaufort County, SC or in the State of Georgia or
Colorado. Without reform at the federal level, this patchwork of local
ordinances and State laws, demonstrating the internal divisions of the
country itself, will continue to present serious obstacles for employers.
In the past year, at least fifteen localities in the country have passed
their own immigration laws, with many, many more propositions yet to be
decided. It can only be hoped that Congress and the President see the
desperate need for reform, put aside their differences, and get busy fixing
the problem before this growing trend makes the description One
Nation seem perhaps a little misleading.
A Swift Kick
The recent Swift raid has thrown the country into an uproar, not to mention our office. It was the primary, if not the exclusive, topic of conversation and thought in my office for all of Wednesday; of course, such an event is what we are paid to converse and think about. And think we have.
I am quoted in an upcoming magazine piece (I received the article draft on the day of the ICE raid) to the following effect:
"I am starting to recommend Basic Pilot more and more. Whatever the government might say, it is defacto a safe harbor. The government is not going to come audit one of the companies using Pilot unless they are a flat out law breaker. The federal government wants companies to use Basic Pilot."
Reading over the draft, I was struck by the ill-timing of my remark, though I had sat for the interview several weeks ago. Wednesday was one heck of a day to read me saying THAT! But as I thought about it - not too late to ask the reporter to yank it - I decided to let it ride. It remains as true today, post Swift, as it was when I said it. And the Secretary of The Department of Homeland Defense happily corroborated my view in his press conference Wednesday morning.
Michael Chernoff : "As we've said, if you enter into Basic Pilot and you do it in good faith, that will protect you against criminal and civil liability. Now, I emphasize 'good faith.' Obviously, if you enter into Basic Pilot and then you deliberately evade it, that's a different story."
Here, with Swift, we have a multi-state action, which resembles in several details the Tyson situation some years back, calling into play the disparate views on the value of Basic Pilot, an answer to the question of "Will ICE continue to enforce, once the midterm elections are over?", an answer to the question, "Is ICE deadly serious about its homeland enforcement mandate?", touching one of the major players on the "Give us workers" angle of immigration reform, an action which seemingly furthers the Pilot wish to plug its own holes, while seemingly hurting the Pilot wish to metastasize into THE universal tool for the verification of work eligibility, while simultaneously - and very publicly - heightening the pitch of this formidable issue, forcing Vilasek to tread a wily course.
Enforcement, with the I-9 and Basic Pilot, accomplishes one purpose, but cannot solve the problem. If enforcement continues without a guest worker program that meets the needs of employers that must have workers, where are we going to get our meat from?
Stay tuned.