Immigration Reform: Hitting The Wrong Target

Posted: Nov 04, 2007 12:01 AM
Immigration Reform:  Hitting The Wrong Target

The rhetoric from Washington about “immigration reform” has stopped.

Tempers have cooled from their peak of last Spring and Summer.

And the future of our nation's immigration policy is very uncertain.

So now would be a good time to take a look at what has happened on a more localized level - - on the level of municipal, county, and state government - - as it regards the struggle to deal with illegal immigration in our country.

It’s no surprise that local lawmakers have attempted to address this huge and growing problem. Our federal government has failed to secure our nation’s borders for decades, and instead of heeding the call from American citizens to get the borders secured NOW, the Congress and the Administration chose instead to lecture us earlier in the year about “comprehensive immigration reform,” “pathways to citizenship,” and “touchback provisions” - - all at their own, political peril.

In response to Washington’s “non-response,” we've witnessed local governments trying to tackle what is, ultimately, a "federal issue." These efforts are noble, and understandable, given the federal government's failure to create and uphold any semblance of a rational, cohesive immigration policy.

In a previous column here at, I wrote about the county board of supervisors in Prince William County, VA. Over the summer, they moved to cut funding of public services to illegal immigrants, and to beef-up police resources, last July.

Shortly thereafter, the board voted unanimously to support a new policy that increases “residency checks,” and seeks to improve and streamline cooperation between the county, and federal immigration authorities.

However, when it came time to voting to budget the $14.2 million estimated to be necessary to actually put the new policy into action, the board voted instead to revisit the “funding issue” at a later date.

In essence, the board “got tough” on illegal immigration, but then appeared to “flinch.” Suspicions abounded that the board of supervisors in Prince William County were yielding to business owners in their region who believed the new measures could harm their fortunes.

While this was unfolding, the state legislature in Arizona this summer passed one of the toughest anti-illegal immigration measures in the country. Known as the “Fair And Legal Employment Act,” it seeks to punish business owners who “knowingly” or “willingly” employ illegal immigrants. Indeed it was a “tough” piece of legislation - - under this new law, signed by Governor Janet Napolitano on July 2nd, business owners in Arizona can be banned from doing further business in the state after only two violations.

Currently, Arizona’s law is being reviewed from the United States District Court, and this could potentially delay the law’s scheduled January 1st implementation date.

And well-intended as the Arizona legislature may have been, there is plenty of reason to believe that the court may very well strike-down the state’s new law. And if this happens, it will be for good reason.

The problem with Arizona’s law is that it too closely resembles a city ordinance passed in Hazelton, Pennsylvania back in 2006. The Hazelton law, which sought to punish employers of illegal immigrants just as Arizona’s law does, was struck down by the U.S. District Court in that state on July 26th - - just 24 days after Governor Janet Napolitano signed her state’s bill into law.

The biggest problem with the Hazelton law is that it mandates employers to do things that are in direct conflict with federal law. With respect to the demand that a Hazelton business owner terminate an employee who might be found to be “illegal,” the judges write:

“Thus, in direct conflict with (federal law), Hazelton seeks to force an employer to terminate an employee, where under federal law the employer is prohibited from terminating that employee. Additionally, under the Hazelton Ordinance, the only appeal right appears to be held by the employer….Without providing any appeal rights to the employee, I.I.R.A. (the Hazelton ordinance) is in conflict with the federal law.”

In short, if a business owner in Hazelton were to attempt to follow the law that the city council passed, he could be found to be in violation of the laws of the country, and thus be subject to law suits and prosecution.

Earlier this year when I raised concerns over these kinds of discrimination claims being falsely made against business owners, I was flooded with nasty email from any readers telling me that such claims would be un-founded, and would never hold up in court.

These responses miss the point. The point is that an individual or family who owns a small business (a business so small that it doesn’t afford a “legal department” or staff attorney) could quite literally be bankrupted while merely trying to defend against such a claim, whether or not the claim is legitimate. And local law that conflicts with federal law can bring about increased discrimination claims.

There is much more to be said on this all important issue of curtailing illegal immigration. But local laws must not be crafted so as to require business owners to contradict federal immigration and employment law. This puts business owners in a no-win, “catch 22” position, and makes business owners pay the price for the federal government’s failures.

And ultimately, the greatest obstacle to meaningful immigration reform is flawed federal law itself.