Dec. 10, 2007 – Page 3644
Lou Barletta is no constitutional scholar. Rather, he’s the mayor of a small, northeastern Pennsylvania town that few had heard of before he made Hazleton, in his words, “the toughest city in America for illegal aliens.”
But with several strokes of a pen in the summer of 2006, Barletta enacted a series of controversial ordinances and transformed this former coal mining community of 30,000 into the voice for millions of Americans who are frustrated by what they say is a growing national crisis. In the process, he launched a constitutional challenge to the supremacy of Congress to write laws governing immigration policy.
Barletta and Hazleton did more than warn employers and landlords that they could lose their business license by abetting the influx of illegal immigrants. They also offered a blueprint that state and local officials across the country have seized upon to craft their own laws. The result is a widening test of the premise that Washington alone is permitted to address immigration concerns.
“If the federal government did its job, nobody would have heard of Lou Barletta,” says the 51-year-old mayor. He says thousands of illegal immigrants have moved to Hazleton over the past six years, and he blames them for gang activity and murders that are a serious threat to the well-being of the town’s legal residents.
Barletta is leading a confrontation aimed straight at language in Article I of the Constitution, which gives Congress the power “to establish a uniform Rule of Naturalization” and to write laws to enforce it that are the supreme law of the land. The core of his argument — that states and localities have a right to act, too — is now being tested in federal courts in Pennsylvania, Illinois, Arizona and beyond.
In coming months, the direction this confrontation will take will become clearer as judges start to issue decisions. But this fight is certain to end up in the hands of the Supreme Court and holds the potential to redefine the roles of Congress and state and local governments regarding immigration. One potential consequence if that authority is allowed to be shared is that companies doing business across the United States will be forced to contend with conflicting and contradictory rules.
Efforts in Congress to enact a comprehensive overhaul of federal immigration laws have been stymied for years by disagreements among those who want to crack down on employers who hire undocumented workers, those who want to expand legal immigration and those who want to bring people who are in the country illegally out of the shadows.
This lack of action on Capitol Hill only encouraged scores of other jurisdictions to step in and fill what they see as a void. So far this year, state lawmakers introduced more than 1,500 bills that address immigrant-related issues — three times the number drafted in 2006. More than 200 have become law, according to a November study by the National Conference of State Legislatures, and that total doesn’t account for a huge volume of ordinances drafted by cities and counties on this issue, including several that mirror Hazleton’s.
Beyond imposing conditions on employers and landlords, they address a number of local policy concerns, including health identification, driver’s licenses, law enforcement and human trafficking.
Opponents of this flood of local legislation — among them labor organizations, Hispanic advocacy groups, the U.S. Chamber of Commerce and the Justice Department — contend that the laws violate the constitutional principle that Congress alone has the authority to regulate immigration. Those diverse groups have brought legal challenges against many of the new state and local laws. And some laws, but not all, have been blocked from taking effect.
Others who would like to put an end to this developing hodgepodge concede that local officials have their reasons, “since Congress has abdicated,” as Pennsylvania Republican
“I think it is understandable and bad,” said Specter, a leading Senate sponsor of the immigration legislation that has been derailed. “They are acting on it out of frustration and desperation. It’s a national issue.”
State and local leaders point to a 31-year-old Supreme Court ruling on this question, and a paragraph buried in a 1986 federal law, as proof that they have some latitude to act. In particular, they say Congress intended to permit states to take such actions as suspending a business license when an employer fails to check on his labor force and workers turn out to be in this country illegally.
If the courts agree with Specter, the issue would remain firmly in congressional hands with few new incentives for lawmakers to resolve their differences. However, if the Supreme Court were to uphold one or more of the state or local laws, that could set off a chain reaction that yields a complex set of immigration rules that change from town to town.
Under that scenario, an undocumented worker could lose his job and apartment in Hazleton, Pa., and drive to New Haven, Conn., where new employment opportunities and a city-issued identification card specifically for illegal residents are waiting.
Some are banking on that sort of chaos to persuade federal lawmakers to move on a uniform solution.
“Having left it to the states, it was clearly predicted that this would happen,” said Arizona Gov.
Hazleton wasn’t the only locality losing patience with Washington two years ago over illegal immigration. But it was among the first to take concrete steps on its own.
Barletta, a lifelong resident, was elected mayor in 2000 and watched his town grow from about 23,000 people to more than 30,000. He estimates that 10 percent of the population is illegal immigrants, many of whom flocked to the former coal mining community from New York City to fill manufacturing jobs with industrial employers like Cargill Meat Solutions and Hershey’s.
At first, the mayor says, he embraced the new residents. He had an outdoor soccer field, complete with artificial turf, built at their request as part of a public improvements project during his first year in office. But over time, Barletta’s hospitality began to ebb. He says illegal immigrants caused a crime wave that has exhausted Hazleton’s 30 police officers.
On May 10, 2006, Barletta reached his breaking point when police arrested a 14-year-old boy and charged him with shooting a handgun at the Pine Street Playground, where the soccer field was built. The boy was in the country illegally. The playground was a place where Barletta had honed his basketball skills as a teenager.
“We have arrested drug dealers for selling cocaine on this playground, while little children were on swings and sliding boards,” he said as he showed off the neighborhood park. “I couldn’t wait for Washington any longer.”
Barletta, a Republican who had lost a campaign for the House in 2002 that wasn’t close, decided he didn’t need to be a member of Congress to try to solve Hazleton’s problems.
A few months after the shooting, with the House and Senate at an impasse over immigration legislation, Barletta pushed the town into adopting the ordinances that would make headlines around the nation. The Hazleton laws — which have been blocked by a federal judge from taking effect — would allow code enforcement officers to investigate complaints about businesses that knowingly hire illegal immigrants and complaints about landlords who knowingly rent to them.
Businesses would have to turn employee information over to the city, which would then verify documents with the federal government. And prospective tenants would have to acquire a permit to rent by proving their legal right to be in the country.
Hazleton’s action marked a turning point for local officials all over the United States who felt powerless against the immigrant flood.
City halls and state legislatures reacted almost overnight and earlier this year teemed with activity on immigration-related measures.
The Arizona law that Napolitano signed earlier this year would require all businesses in the state to consult a federal database to confirm the Social Security numbers of potential employees and weed out undocumented workers. A failure to do so that results in the hiring of an illegal immigrant could be cause for revocation of the company’s license to operate. That law is now under a legal challenge, and the judge in the case is expected to make at least a preliminary ruling by the first of the year.
In Oklahoma, legislators enacted a law last month that makes it a felony to knowingly transport illegal immigrants and requires employers to verify immigration status of workers. It also limits certain government benefits to those who can produce proof of citizenship. That law went into effect days after a federal judge denied a request to block it pending the outcome of a legal challenge.
Missouri Gov.
Not all the action has been punitive, however. In contrast to laws that threaten the business licenses of companies that fail to use federal databases to confirm Social Security numbers, the Illinois General Assembly has voted to prohibit companies from consulting those same databases to prevent the hiring of illegal immigrants. That law is facing a challenge from the Justice Department.
And the city of New Haven began issuing municipal identification cards in July so illegal residents could open bank accounts and use other services that traditionally require a driver’s license. New York Gov.
The legal challenge to Hazleton’s restrictive ordinances is among the first to be heard by a judge, and the outcome of that case is being closely watched by state and local officials who are contemplating action of their own.
The lawsuit was filed by Pedro Lozano, a Colombian-born man who is in the United States legally and claims that the city ordinances have imposed a financial burden on his family. He and his wife had purchased a home in 2005 and planned to offset the cost of the mortgage by renting out rooms.
Several other residents — some of them unnamed in the lawsuit because they are in the country illegally — and Hispanic business and advocacy groups joined Lozano in the suit. The plaintiffs have received legal support from the American Civil Liberties Union.
Their challenge to the Hazleton ordinances rests on several constitutional principles. The primary argument — which federal district Judge James M. Munley upheld in July — is that the Constitution explicitly gives Congress sole authority over immigration. Any state or local ordinance that contradicts federal law violates the Constitution’s “supremacy” clause, Munley ruled.
Allowing states to suspend a business license is tantamount to the “ultimate sanction” of forcing an employer out of business, the judge wrote. “It would not make sense” for Congress to grant states and municipalities this power “but no lesser penalty,” he said. To argue otherwise would make federal pre-emption of state laws under the supremacy clause “nearly meaningless,” Munley wrote in throwing out Hazleton’s ordinances.
The town has appealed Munley’s decision to the 3rd U.S. Circuit Court of Appeals, and both sides are expecting a drawn-out legal battle that ends with a Supreme Court decision. Everyone with a stake in this fight is watching the Hazleton case because the arguments at its core are central to most of the other legal challenges to state and local immigration laws.
“I think it is really dancing on the head of a pin to talk about the legalism of preemption,” said former Sen. Alan K. Simpson, the Wyoming Republican whose name is attached to the most significant overhaul of federal immigration policy in the last two decades. Simpson said he doesn’t blame local officials for testing the legal boundaries of the Constitution. “These communities are overwhelmed. We are going to do it, and if it has to go to court, let it go to court. And the Supreme Court will have to figure it out.”
Convincing the nation’s highest court that Hazleton hasn’t breached constitutional limits won’t be an easy task, but state and local officials are building a legal defense that hinges on the court’s own words, along with the 1986 law that Simpson sponsored along with former Rep. Romano L. Mazzoli, a Kentucky Democrat.
Barletta knew from the beginning that he would need expert advice, and he found it last year when he read a story in USA Today about his own situation. The newspaper quoted Kris Kobach, a law professor at the University of Missouri, saying Hazleton was acting within the law. Barletta says he put down the story and told his secretary: “I don’t know how we find this guy, but we better find him.”
Kobach had the sort of credentials and experience that Barletta knew he needed to prevail. He had worked at the Justice Department in 2001-03, and spent most of that time as counsel and chief adviser on immigration and border security to Attorney General John Ashcroft.
When Barletta called, Kobach gladly offered his legal expertise and helped Hazleton hone its ordinances in a way that he said ought to pass muster with the courts.
“I believe what Hazleton has done is perfectly constitutional,” said Kobach, who has also worked with the town of Valley Park, Mo., to draft and defend an ordinance almost identical to Hazleton’s and that faces the same challenge.
In his view, the Supreme Court made clear decades ago that states aren’t forbidden from legislating in this area. In a 1976 ruling written by Justice William J. Brennan Jr., the high court upheld a California law that prohibited employers from hiring illegal immigrants if “such employment would have an adverse effect on lawful resident workers.”
In his opinion in the case of De Canas v. Bica, Brennan wrote that “the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.”
Kobach’s argument also relies on a sentence in the 1986 Simpson-Mazzoli Act that made knowingly hiring illegal immigrants a crime. Although the law clearly states that the federal law pre-empts all state and local laws “imposing civil or criminal sanction” against employers, it includes an exemption for states to restrict “licensing.” That’s exactly what Hazleton and Valley Park have done, Kobach says. “All pre-emption cases turn on the intent of Congress, and when the intent is written in law, then it is a slam dunk,” he said.
In deciding to sign the Arizona legislation into law, Napolitano relied on advice from her attorney general, Terry Goddard, who reviewed the language in the 1986 federal statute and reached the same conclusion as Kobach.
“We believe the Congress clearly contemplated that states could use their state licensure laws in the way the bill I signed contemplates,” she said in an interview.
But a large number of legal scholars are less certain of the argument. They say the line drawn by the Constitution is too clear to make such a firm a prediction.
State and local governments aren’t altogether forbidden from adopting employer sanctions if they are “entirely consistent with federal policy,” said Peter Schuck, a professor at Yale Law School. But that can be a tricky course to navigate, he said. Even those laws that claim to be “consistent” could fail to meet the constitutional test if a court finds that they double the punishment, according to Schuck. “Just because Congress has a policy against unauthorized employment doesn’t mean any amount of enforcement of that is OK,” he said. “Having states add on penalties is not necessarily consistent with that.”
Still, there’s no disputing that Congress has determined that knowingly hiring illegal immigrants is against the law, and the courts could find that local sanctions are acceptable in certain circumstances, Schuck said.
But he’s also sure that the Hazleton and Valley Park laws that penalize landlords for renting to illegal immigrants will be struck down because the municipalities are forging ahead on their own. “The federal government has no policy against habitation for undocumented workers,” he said.
Michael Wishnie, a professor of immigration, labor and civil rights law at Yale Law School, sees a different problem with A-Kobach’s argument. Wishnie views the 1986 federal law creating employer sanctions as a direct response to the 1976 court decision, and said a judge is likely to take that into consideration. In his view, the pre-emption language in the law is fairly clear, and the licensing exemption was intended to address “about a dozen states” that had already established employer sanctions in 10 years in between the court ruling and the law’s enactment.
“Congress gave some thought to a national system and intentionally selected a national standard,” Wishnie said. “I think the legislative history is clear. In light of that, state or local governments that adopt employer sanctions are likely to lose.”
Similarly, the Illinois law that bans businesses from using federal employee verification databases is likely to also be found unconstitutional, said Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. The supremacy clause isn’t limited to punitive laws, he said. “What’s sauce for the goose is sauce for the gander.”
Whatever the courts eventually determine will have a direct impact on the nation’s economy, and any decision that clears the way for a broad array of immigration laws could spell real difficulty for those businesses that operate in many states.
Moreover, a conclusion to this legal fight might take years, and the uncertainty during that time will be equally vexing for companies caught in the middle.
Those were the sorts of concerns that led the U.S. Chamber of Commerce and a coalition of Arizona businesses to challenge the constitutionality of that state’s new law.
Phoenix restaurateur Jason LeVecke, who is the head of one of the plaintiff organizations, says he is particularly worried that his ability to do business might be put in jeopardy through no actions of his own.
LeVecke is the kind of entrepreneur that most states would like to attract. Together with his wife and two siblings, he went from having a pair of Carl’s Jr. hamburger restaurants six years ago to owning almost every outlet of the popular West Coast chain in Arizona.
But since Napolitano signed the employer sanctions law in July, LeVecke no longer feels comfortable leaving the hiring responsibility with his restaurant managers. He has taken to doing all the paperwork himself to avoid endangering his ability to operate, a costly change for a company with more than 1,200 workers at 57 locations that spread from just north of the Mexican border to within 100 miles of Las Vegas.
“I’m sympathetic to her frustration, because that is shared,” LeVecke said of the governor. “But I’m not sympathetic to her signing this law. She’s turned the free enterprise system on its head.”
Centralizing his hiring was a necessary move, LeVecke said, to protect the company from losing its license. The law provides a safe harbor for companies that run Social Security numbers through the federal employee verification database, known as Basic Pilot. But LeVecke said his reading of the law is that “knowledge” of an illegal employee is the crime. He offers the possibility of a disgruntled manager getting caught hiring an illegal worker and saying LeVecke knew about it. Even if the manager is lying, there’s no punishment for the employee, but LeVecke risks being shut down.
“I have no choice. I have to be as protective as possible,” LeVecke said.
In its Arizona lawsuit, the business coalition complained about the logistical burden of having to satisfy stringent checks for all employees, even those working outside the state. The law would not be limited to employees in Arizona alone, they asserted. It would apply to all employees of businesses that “have at least one employee in Arizona and a license or permit issued by the state or one of its political subdivisions,” according to the lawsuit.
That presents a legal problem for any company that also has operations in Illinois. That state’s law, signed in August by Gov.
The Justice Department lawsuit against Illinois, filed in behalf of the Department of Homeland Security, which operates Basic Pilot, asserts that it directly conflicts with a congressional mandate that the document verification program be available to employers nationwide, and that they be encouraged to use it.
That has put Dunkin’ Donuts, the world’s largest coffee and baked goods chain, with 5,400 stores in the United States and more than $6.4 billion in sales, in a quandary. Executives at Dunkin’ Brands, the parent company, decided in June 2006 to stiffen their hiring policies across the country to avoid being caught in the growing immigration controversy. Franchise owners would no longer be allowed to follow basic federal guidelines for checking the citizenship of prospective employees. Instead, applicants’ Social Security numbers were to be verified through a federal government database.
Like many companies, Dunkin’ Donuts was preparing for what it thought would be inevitable, tough new laws intended to ensure a legal workforce. The Arizona law proved them right. But it turned out they were dead wrong in Illinois, and they are retreating from the new company policy in that state.
“Franchisees are not FBI agents,” said Steve Caldeira, executive vice president for global communication for Dunkin’ Brands, in explaining why the company adopted its new policy. “But we can’t go against the law” in Illinois.
And while large employers are watching the legal fight closely to see where they need to adapt, nowhere has the economic impact of new local laws been felt more than along North Wyoming Street in Hazleton. Sales are down at a number of small stores since the town’s ordinances were enacted.
“Before, business was better than now,” said Francisco Rodriguez, looking around at the empty “Multi-Service” store he owns that wires money, sends packages and provides telephone service outside the United States. “I don’t think it is fair.”
Many of the shops on North Wyoming are Hispanic-owned and rely solely on the city’s Spanish-speaking population. Neon signs promise “Desayunos, Almuerzos, Comidas” and “Sabor de Quisqueya” in colorful storefronts that would easily blend into long-established Hispanic sections of New York or California, but seem misplaced against Hazleton’s aging industrial fa??ades.
“Last year was bad, but this year is coming more down,” said Maria Isabel Rubio, who has lived in Hazleton since 1983 and has owned a gift shop the past 10 years that sells “everything” — jewelry, phone cards, CDs, small flags from Poland, Mexico and the United States, and even “a little perfume.”
She calls the dearth of customers “contagioso,” or contagious. “Maybe, they come back,” she said of her former customers. “But in the meantime, a lot of people left.”
So far, the constitutional challenges around the country have had little impact on the immigration debate in Washington. Few lawmakers expect that will change soon, and most lawmakers appear content to avoid the issue until after the 2008 election. About the only political venue where immigration seems welcome is on the campaign trail, where Republican presidential candidates have seized on it.
Even President Bush has backed away from the topic, after angering conservative Republicans throughout most of his tenure by supporting policies toward illegal immigrants that have been criticized for being lenient.
The Bush administration’s immigration plans suffered a blow in June when the Senate once again refused to move a comprehensive immigration bill that several Cabinet secretaries had helped draft.
The Department of Homeland Security followed that defeat by announcing a new enforcement policy in August. Companies were to be targeted if they hired workers after being told by the Social Security Administration that their new hires had invalid Social Security numbers. Faced with a legal challenge to the new policy from both business and labor groups, the department announced after Thanksgiving that it would revise it.
“Right now, the general view around here is it is too hot to handle,” said Specter, who has tried to revive the immigration debate but has found little support.
One lobbyist who closely follows the issue said lawmakers are overwhelmed by a vocal “single-issue” grass-roots campaign opposed to any immigration overhaul that can be tarred as amnesty for immigrants already in the country illegally.
Regardless of whether these opponents represent the majority opinion, they can organize enough opposition to derail any legislation. “The situation on Capitol Hill is being driven by the number of phones that ring off the hook,” said Randy Johnson, vice president of the U.S. Chamber for labor, immigration and employee benefits issues. “They have been very effective in burning the phone lines with calls in opposition to any sort of comprehensive immigration reform.”
The impasse is such that only a Supreme Court decision that requires Congress to share some of its authority on immigration regulation could induce lawmakers to act. But some on Capitol Hill are dubious that even a court decision could initiate a legislative response.
“My experience is that the legislatures, whether they are state or federal, are delighted when courts do the heavy lifting and take the blame that goes along with it,” said Sen.
Rep.
“It’s hard to imagine what could exist, apart from what exists now, that could get Congress to act,” he said. Berman cited millions of exploited and illegal workers, a rash of fraudulent documents, a porous border and no incentive to verify Social Security numbers. “What more do you need to say you ought to do something?” he said.
A court decision alone might not provide the impetus to get Washington moving, but the leader of a border security advocacy group that has provided legal support to Hazleton says it could be a needed catalyst.
“If the court upholds a statute, I think you will see more states act,” said Julie Kirchner, the executive director for the Federation of American Immigration Reform. “In the same roundabout way, it will pressure Congress to act to make them uniform.”
That’s almost exactly what Napolitano says. She doesn’t deny that state laws — including the one she signed — pose problems for business. She has a ready answer when asked about an economy that is torn by 50 different state immigration laws, not to mention myriad city and county ordinances.
Blame Washington, she says, arguing that Congress put her state and others in the position of having to make decisions.
“Immigration is a tough issue for the president and the Congress to take up, and there is no incentive to do that unless they perceive the real need to have one uniform immigration law that is enforced and is enforceable,” she said.
FOR FURTHER READING: 2007 overhaul effort, CQ Weekly, p. 2551; Democrats split on immigration, p. 636; immigration issue focused on Arizona, 2006 CQ Weekly, p. 2286; 2006 overhaul effort, 2006 Almanac, p. 14-3; Simpson-Mazzoli immigration overhaul (PL 99-603), 1986 Almanac, p. 61.