States Not Waiting for U.S. Reform

By Irwin Speizer

Jul. 21, 2008

When Congress passed the Immigration Reform and Control Act of 1986, the measure was supposed to resolve the nation’s illegal immigration problem. It didn’t work.

    Twenty years later, lawmakers took another crack at the issue. But a deeply divided Congress was unable to reach agreement, and immigration reform died in 2007.

    By then, a new front in the immigration battle had opened. In June 2004, Kris Kobach, a law professor at the University of Missouri-Kansas City, authored a paper suggesting that states could help improve national security in the post-9/11 era by enforcing federal immigration laws. He argued that federal immigration law contained a clause that gave states some limited enforcement authority. Kobach spoke from experience: From 2001 to 2003, he had been an immigration specialist in the U.S. Attorney General’s Office and, after the terrorist attacks of 2001, was put in charge of efforts to tighten border security.

    As national immigration reform was collapsing, Arizona state Rep. Russell Pearce, a Republican from Mesa and an outspoken critic of U.S. immigration policy, decided to test how far his state could go in regulating illegal immigration itself. He settled on the workplace as the spot to focus enforcement efforts.

“When you start having different procedures in different states, it starts to open the door to all kids of discrimination complaints. We want one national system.”
—Lynn Shotwell, executive director, American Council on
International Personnel

    Pearce sponsored a bill to make Arizona employers confirm the legal status of all newly hired workers, relying partly on Kobach’s argument as the legal basis for the measure. The bill passed and Arizona’s new employer sanction law was signed in July 2007, mandating that all employers in the state use the federal E-Verify system, which had been set up as a voluntary program.

    A coalition of employer groups sued in federal court that same month to block the law. One of the key arguments was that states do not have the authority to enact immigration laws. The first round in Arizona federal court went to the state and an appeal was heard June 12 in federal court in San Francisco. A ruling may come later this summer.

    Meanwhile, other states and cities began enacting their own laws. The National Conference of State Legislatures found that 41 states enacted 170 immigration-related laws in 2007. In the first quarter of 2008, state legislatures considered more than 1,100 immigration-related bills.

    “We are really concerned about these state laws,” says Lynn Shotwell, executive director of the Washington-based American Council on International Personnel, which represents large multinational corporations. The hodgepodge of rules not only complicates the hiring process for large corporations, but also raises the potential of mistakes that can lead to legal problems, she says.

Workforce Management, June 23, 2008, p. 52Subscribe Now!

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