California Dreamin’

Introduction/Summary

A group of 27 self-identified “immigration and constitutional law scholars” has recently assured the State of California that it would be perfectly within its rights to give state universities the go ahead to hire and employ illegal aliens:

• “In our considered view ... no federal law prohibits [The University of California] from hiring undocumented students.”
• “IRCA’s [The Immigration Reform and Control Act of 1986] prohibition on hiring undocumented persons does not bind state government entities[, which] can lawfully hire undocumented students irrespective of employment authorization status under federal law.”
• This despite the fact that Congress intended IRCA to apply to all employers, with the goal of deterring the hiring of illegal aliens and thus cutting off the jobs magnet for illegal immigration. The scholars’ primary argument is that 1) IRCA did not spell out that its prohibition against hiring and employing illegal aliens applied to the states, but rather simply stated that the prohibition applied to persons and entities; and 2) without such a spelling out, Congress cannot intrude on the states’ historic “police power” to regulate employment within their boundaries.
• The scholars’ argument is most likely wrong for a number of reasons, including 1) Congress can evidence its “clear and manifest” purpose by the state policy producing a result inconsistent with the objective of the federal statute, and as a Federal court has concluded, allowing states “to legislate with regard to the employment of unauthorized aliens would interfere with Congressional objectives”; and 2) IRCA’s employer sanctions are unlikely to be the type of provisions which even require such a spelling out.
• The scholars also make the argument that since a state has the constitutional right to select its elected and non-elected leaders under criteria of its choosing, a state consequently has a constitutional right to elect/hire an illegal alien to be governor or the governor’s chief of policy, regardless of any command to the contrary by the U.S. Congress. This may well be true, and it may even be true that a state has the constitutional right to hire illegal alien professors at state universities. However, such a “right” would have to be extrapolated from Supreme Court rulings that states can limit eligibility for positions such as police officers and public school teachers to U.S. citizens. It is far from clear that the Supreme Court would agree to the obverse, that a state has the right to hire aliens who are unauthorized to work under federal law.

Irked by Illegal Immigration, Congress Passes IRCA

I must say that these "immigration and constitutional law scholars" really seem to be pushing the envelope. Maybe that is why they sometimes hedge their bet, as when they state that “on balance, the evidence probably favors a finding that IRCA does not bind States” or “IRCA is probably best read to not bind the States.” (Emphasis added.) In any event, as I also fancy myself to be an immigration and constitutional law scholar, I will investigate their claim.

IRCA provides that:

It is unlawful for a person or other entity ... to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien ... with respect to such employment... . [or] to continue to employ the alien ... knowing the alien is (or has become) an unauthorized alien with respect to such employment.

Employer Sanctions. These prohibitions (and the associated “I-9” process in which employers must examine the identity and employment authorization documents of new hires) are collectively known as “employer sanctions”. As former California Democrat Rep. Howard Berman once succinctly put it: “employer sanctions were established to make it illegal to hire someone who is not here legally.”

What prompted Congress to institute them? The House Judiciary Committee noted in 1996 that:

Laws against the employment of illegal aliens ... were considered by Congress as early as ... 1952 ... . The endorsement by the Select Commission [on Immigration and Refugee Policy] in 1981 provided a strong impetus for the passage of such measures, and employer sanctions became a part of the Simpson-Mazzoli immigration reform bill, eventually enacted as [IRCA].

The Select Commission, chaired by Theodore Hesburgh, president of the University of Notre Dame, was established by Congress in 1978 “to study and evaluate ... existing laws, policies, and procedures governing the admission of immigrants and refugees to the United States” and to make “administrative and legislative recommendations”. Sen. Alan Simpson stated during Senate consideration that IRCA “is the basic work product of [the Select Commission].”

The Select Commission concluded that:

• The vast majority of undocumented/illegal aliens are attracted to this country by employment opportunities... . As long as the possibility of employment exists, men and women seeking economic opportunities will continue to take great risks to come to the United States, and curbing illegal immigration will be extremely difficult... . [T]he success of any campaign to curb illegal migration is dependent on the introduction of new forms of economic deterrents.

• Without an enforcement tool to make the hiring of undocumented workers unprofitable, efforts to prevent the[ir] participation ... in the labor market will continue to meet with failure. Indeed, the absence of such a law serves as an enticement for foreign workers... . [S]ome form of employer sanctions is necessary if illegal migration is to be curtailed.

IRCA was enacted in November 1986. The following month, the House Judiciary Committee published a Summary and Explanation that explained that:

The major purpose of [IRCA] is the control of illegal immigration ... . [It] makes it illegal for employers to hire aliens who are unauthorized to work ... and establishes penalties for violation... . The purpose of employer sanctions is to deter employers from hiring undocumented aliens, and thus to cut off the magnet of employment.

As the Federal Second Circuit Court of Appeals found in 1990:

[IRCA] was the result of fifteen years of congressional hearings and executive branch studies concerning the problem of illegal immigration ... . By 1986, Congress had determined from these hearings and studies that “employment is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in violation of their status.” ... Addressing this problem, Congress concluded that employer “sanctions, coupled with improved border enforcement, is the only effective way to reduce illegal entry and ... the most practical and cost-effective way to address this complex problem [quoting the House Judiciary Committee report on H.R. 2202].”

And the AFL-CIO told the Supreme Court in 2012 (in an amicus brief):

The impetus for Congress’ decision to twice [in 1986 and 1990] amend the INA [Immigration and Nationality Act] to “ma[ke] combating the employment of illegal aliens central to ‘the policy of immigration law,’” ... was a recognition that “[e]mployment is the magnet that attracts aliens here illegally ..,” [citing the same committee report]. In enacting IRCA, Congress intended that “[e]mployers will be deterred by the penalties in this legislation from hiring unauthorized aliens and this, in turn, will deter aliens from entering illegally or violating their status in search of employment.” ... In enacting [the Immigration Act of 1990], Congress intended that “a system of civil fines [would] deter users of fraudulent documents,” [citing a floor statement of Sen. Alan Simpson], from engaging in a practice that had undermined the effectiveness of the INA’s employment verification system.

Which employers did Congress intend to be subject to these sanctions? The House Judiciary Committee’s Summary and Explanation stated that “[a]ll employers are required to comply with the verification procedures for new hires.” (Emphasis added.)

The Scholars’ Arguments

Well, I’d like to have an argument, so I will now head to the argument clinic to discuss the immigration and constitutional law scholars’ main arguments.

Argument #1: The Sound of Silence

The scholars argue that:

• IRCA contains no language declaring that it binds States; in fact it makes no mention of States as actors with obligations ... . Thus, IRCA is best read simply not to apply to States.

• IRCA makes it “unlawful for a person or other entity to hire ... an unauthorized individual ... .” “Entity” is not defined as such in the statute, but ... IIRIRA ... specifies that an “entity” “includes an entity in any branch of the Federal Government.” ... Thus, the statute mentions ... various entities, including the Federal Government, as covered by its provisions, but nowhere mentions States.

• At the same time that IIRIRA specified that the Federal Government was an “entity” without mentioning States, it added another section to the INA stating that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” ... Thus, the Congress that amended IRCA to specifically bind Federal agencies knew how to specify that State entities were bound by its legislation.

• IRCA’s failure to mention States while specifically mentioning Federal entities ... suggests the statute likely does not bind State governments.

OK, at first blush, this argument seems compelling. Why else would Congress specify that entities in the federal government are subject to employer sanctions, not say the same about entities within state governments, and elsewhere in the same legislation specify that entities within state governments are subject to a separate requirement? It is easy to jump to the conclusion that Congress didn’t intend for entities within state (or local) governments to be subject to employer sanctions.

Let me explain why that would be an incorrect conclusion. First, Congress did not feel the need to specifically state the obvious, that states (when acting as employers) are covered by employer sanctions just as are any other employers. States at the time were simply not falling all over themselves to employ illegal aliens. In fact, a score of them had passed laws penalizing employers for hiring illegal aliens. In 1980, the U.S. General Accounting Office (GAO) reported that:

States that have enacted employer sanctions legislation include California (1971), Connecticut (1972), Delaware (1976), Florida (1977), Kansas (1973), Maine (1977), Massachusetts (1976), Montana (1977), New Hampshire (1976), Vermont (1977), and Virginia (1977). The central theme of these laws is that “no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States ... .” California and Delaware have added the condition: ... “if such employment would have an adverse effect on lawful resident workers.” ... The penalties for violation range up to a maximum of $1,000 per offense and/or confinement of 1 year per offense. ... To our knowledge, only Kansas has successfully prosecuted a case to date and imposed a fine of $250 ... [and] the remaining States are not planning enforcement of their ... legislation. The reasons vary: the illegal alien problem is not significant in those States; prosecution is up to the local officials; additional funds have not been allocated; and/or the States are awaiting pending Federal legislation.

The Select Commission was certainly aware of these state laws — its staff report noted that “twelve states have employer sanctions statutes which proscribe ‘knowing’ employment of undocumented/illegal aliens” and a report prepared for the commission (by my colleague David North) noted that “[t]here are some state laws to this effect but to date the enforcement has been limited [“Enforcing the Immigration Law: A Review of the Options”, Center for Migration Studies (1980)].”

Congress was not faced with having to rein in rogue states that were seeking to hire illegal aliens (or otherwise thwart enforcement of our nation’s immigration laws). What a difference 40 years makes! In any event, had it been, Congress surely would have specified that the states were bound by the prohibition on the hiring and employment of illegal aliens. But it wasn’t, so Congress felt no need to divert drafting resources for that purpose.

Interestingly, California had itself set in motion this state legislative gold rush. As the GAO stated, “Most of the States enacted their employer sanctions legislation after the U.S. Supreme Court’s 1976 ruling in DeCanas v. Bica that California's legislation ... was constitutional... . [as being] within a State's police power to protect lawfully employed workers within the State.”

Second, it is important to point out that IRCA, as enacted in 1986, made no mention of federal entities being included in the pool of entities subject to employer sanctions. Congress did not do that until a decade had passed, when in 1996 it clarified that “the term ‘entity’ includes an entity in any branch of the Federal Government” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

What did Congress want to achieve with this clarification? Lamar Smith, chairman of the House Judiciary Committee’s immigration subcommittee and the author of H.R. 2202, the House foundation for IIRIRA (and then-subcommittee counsel, and my then-colleague, Ed Grant) wrote in 1997:

The enforcement centerpiece of the IRCA — sanctions against employers who hire illegal aliens — failed to include any system whereby employers could reasonably verify the status of their new employees. A booming market in fraudulent documents soon developed.

Unfortunately, the easy availability of counterfeit documents ... has made a mockery of the law. Fake documents were produced in mass quantities ... . As a result, even the vast majority of employers who wanted to obey the law had no reliable means of identifying illegal aliens; and ... such employers actually risked being found guilty of discrimination on the basis of national origin if they asked for additional documents. At the other extreme, rogue employers could easily collude with illegal alien employees to avoid the provisions of IRCA... . comfortable in the knowledge that they were presented with “genuine” documents.

What to do? As F. James Sensenbrenner, Jr., stated, “President Clinton organized a Commission headed by the late Barbara Jordan to study our immigration policies, to see if the current system is working, and to make recommendations if it is not.” In 1994, the U.S. Commission on Immigration Reform recommended to Congress that:

• A better system for verifying work authorization is central to the effective enforcement of employer sanctions.
• The Commission recommends development and implementation of a simpler, more fraud-resistant system for verifying work authorization... .
• In examining the options for improving verification the Commission believes that the most promising option for secure, non-discriminatory verification is a computerized registry using data provided by the Social Security Administration ... and the INS.
• The Commission recommends that the President immediately initiate and evaluate pilot programs using the proposed computerized verification system in the five states with the highest levels of illegal immigration as well as several less affected states.
• At a minimum, the President should issue an Executive Order requiring federal agencies to abide by the [employer sanctions] procedures required of other employers. Alternatively, legislation should stipulate that federal agencies follow the verification procedures required of other employers ... .

Chairman Smith drafted H.R. 2202 to reflect the commission’s recommendations. He stated during House floor consideration that “this legislation implements the recommendations of the Commission on Immigration Reform, chaired by the late Barbara Jordan” and Sensenbrenner stated that it “contains over 80 percent of th[e Jordan Commission’s] recommendations”.

IIRIRA created three employment eligibility verification pilot programs, one of which (the “basic pilot program”) was later rebranded as the current E-Verify system. The House Judiciary Committee’s report stated that:

[T]here must be an authoritative check of the veracity of the documents provided by new employees. Such a verification mechanism will be instituted on a pilot basis, using existing databases of the SSA and the INS. Every person in America authorized to work receives a Social Security number. Aliens legally in this country (and many illegal aliens) have alien identification numbers issued by the INS. If a verification mechanism could compare the Social Security (and, for a noncitizen, alien number) provided by new employees against the existing databases, individuals presenting fictitious numbers and counterfeit documents, or who are not authorized to be employed, would be identified... .

[The bill] will institute pilot projects testing this verification mechanism in at least five of the seven states with the highest estimated populations of illegal aliens. All employers in such states having 4 or more employees will be involved.

As Smith and Grant later wrote:

IIRIRA was [in part] enacted to fulfill the promise of the IRCA and significantly weaken the job magnet... . IIRIRA creates three employment eligibility verification pilot programs designed to make fraudulent documents useless... . These pilots will give employers the tools they need to hire legal workers.

IIRIRA generally made the pilot programs voluntary, but provided that:

• Each [Executive] Department of the Federal Government shall elect to participate in a pilot program and shall comply with the terms and conditions of such an election.

• Each Member of Congress, each officer of Congress, and the head of each agency of the legislative branch, that conducts hiring in a State in which a pilot program is operating shall elect to participate in a pilot program, may specify which pilot program or programs ... in which the Member, officer, or agency will participate, and shall comply with the terms and conditions of such an election.

The H.R. 2202 conference report stated that:

This provision clarifies that the Federal government must comply with section 274A of the Immigration and Nationality Act, which makes unlawful the knowing employment of aliens not authorized to work in the United States and requires employers to confirm the identity and employment authorization of new employees. [Emphasis added.]

H.R. 2202 as it had originally passed the House used slightly different language, providing that:

Each entity of the Federal Government that is subject to the requirements of section 274A of the [INA] (including the Legislative and Executive Branches of the Federal Government) shall participate in the pilot program under this section and shall comply with the terms and conditions of such an election.

Congress wanted to require participation by Federal agencies in a pilot program. Since, during House floor consideration, the federal entities that would have to participate were those “subject to the requirements of section 274A”, the drafters obviously wanted to make sure that the universe of federal entities subject to section 274A included all those it wanted to participate. This was the reason why Congress amended IRCA 10 years after it was enacted — to clarify that federal entities were bound by employer sanctions.

Consistent with this analysis, the provision was not contained in H.R. 2202 as introduced, nor was it contained in the bill as reported by the Judiciary Committee. The drafters at those stages had no reason to include the clarification — because in both those versions of the bill, participation in a pilot program was mandatory for all employers. However, there was a large measure of opposition by many House Republicans at the time to making the pilot program mandatory — Big Brother, the Mark of the Beast, opposition by business groups, and all that. So, to get the bill to the floor, Lamar Smith agreed to voluntary pilot programs along with a separate floor vote to convert their status back to mandatory. A deal was made, the bill went to the floor, the Elton Gallegly amendment to make the pilots mandatory was defeated, and IIRIRA was eventually enacted into law after a conference with the Senate and post-conference negotiations with the Clinton administration.

In any event, the bill was modified in the House Rules Committee through a self-executing amendment that made the pilots generally voluntary but required the participation of federal agencies, and made the clarification regarding federal entities. Opaque? Sure. But because the provision was added as a self-executing amendment, there was not any debate on it on the House floor.

As to the provision prohibiting a government entity/official from preventing a government entity/official from sending to, or receiving from, the INS information regarding the citizenship or immigration status of any individual, the provision specified state entities precisely because its purpose was to rein in rogue state and local “sanctuary” jurisdictions. The House Judiciary Committee report stated that:

This section is designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS.

Argument #2: Warning — Explicit Content

The scholars argue that:

• The language of statutes that do bind State governments provides the strongest support for the view that IRCA does not apply to States. These statutes — without exception — explicitly mention State governments.

• In 1985 — the year before IRCA’s enactment — the Supreme Court held that Congress must use “unmistakably clear” language to signal its intent to abrogate State Eleventh Amendment sovereign immunity [against lawsuit in federal court], because the ... Amendment “serves to maintain” the “constitutionally mandated balance of power between the States and the Federal Government.”

Let’s unbind the scholars’ argument and examine the statutes they cite:

Title VII of the Civil Rights Act of 1964. The scholars state that it “explicitly includes States in its definition of employer” and that “Congress amended the definition of ‘person’ to include “governments, governmental agencies, [and] political subdivisions”.

This is completely inapposite because the pre-amendment Title VII specifically excluded states: “The term ‘employer’ does not include ... a State or political subdivision thereof.” IRCA never specifically excluded States.

The Fair Labor Standards Act (FLSA). The scholars state that “Congress explicitly mentioned” certain state entities in the FLSA and that while it “first “excluded States as employers”, it was amended “to cover certain State hospitals and schools” and then further amended to include “a ‘public agency’ which includes ‘the government of a State or political subdivision thereof’”.

This is completely inapposite because the pre-amendment FLSA specifically excluded states: “‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include ... any State or political subdivision of a State[.]”

The Rehabilitation Act. The scholars state that it “explicitly lists States and State entities as bound by its anti-discrimination prohibitions” and that under the act “‘[p]rogram or activity’ includes ‘a department, agency, special purpose district, or other instrumentality of a State or of a local government[.]’”

However, Congress was on notice when drafting the Rehabilitation Act in 1973 of the need to specifically state that it was stripping states’ Eleventh Amendment sovereign immunity. In Employees v. Missouri Pub. Health Dept., decided a few months before Congress passed the Rehabilitation Act, the Supreme Court stated that:

It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity ... [without] indicating in some way by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause ... desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution.

In 1996, the Supreme Court ruled in Seminole Tribe v. Florida that Congress cannot strip states of sovereign immunity based on the Constitution’s Interstate Commerce Clause. Congress can still strip immunity based on the Equal Protection Clause of the Fourteenth Amendment. As the Court explained in Pennhurst State School v. Halderman in 1984:

[A]lthough Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, ... we have required an unequivocal expression of congressional intent to “overturn the constitutionally guaranteed immunity of the several States.” ... . Our reluctance to infer that a State's immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system.

IRCA involved neither the stripping of states of sovereign immunity nor a similar express command of the Supreme Court. The example of the Rehabilitation Act is completely inapposite.

The Age Discrimination in Employment Act (ADEA). The scholars state that it “explicitly covers States” and that while it first “excluded the States” from the definition of employer, it was amended to “include ‘a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State[.]’”

This is completely inapposite because the pre-amendment ADEA specifically excluded states: “The term ‘employer’ ... does not include the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof.”

The Individuals with Disabilities Education Act. The scholars state that the act, which conditions federal school funding on states meeting certain requirements, “explicitly binds States”.

This is completely inapposite as it is another Eleventh Amendment case and involves congressional gifts. As the Third Circuit explained in M.A. v. State-Operated School Dist. of the City of Newark in 2003:

• Congress [may] bestow[] a gift or gratuity, to which the state is not otherwise entitled, with the condition that the state waive its Eleventh Amendment immunity ... . As is often the case ... the gift or gratuity at issue is federal funds disbursed by Congress pursuant to its Article I spending powers.

• [T]hree requirements must be met before a court may determine that a state has waived its sovereign immunity by accepting a Congressional gift or gratuity [including that] Congress must state in clear and unambiguous terms that waiver of sovereign immunity is a condition of receiving the gift or gratuity.”

The Family and Medical Leave Act (FMLA). The scholars state that it “explicitly binds States” and that it “defines ‘employer’ to include ... ‘the government of a State or political subdivision thereof; [or] any agency of ... a State, or a political subdivision of a State[’”].

This is yet another Eleventh Amendment sovereign immunity case. In 2003, the Supreme Court stated in Nevada Dept. of Human Resources v. Hibbs that:

In enacting the FMLA, Congress relied on two of the powers vested in it by the Constitution: its Article I commerce power and its power under § 5 of the Fourteenth Amendment to enforce that Amendment's guarantees. Congress may not abrogate the States' sovereign immunity pursuant to its Article I power over commerce... . Congress may, however, abrogate States' sovereign immunity through a valid exercise of its § 5 power.

Argument #3 — Pre-Emptive Strike

The scholars argue:

• “[A] clear statement principle of statutory construction ... applies when Congress intends to pre-empt the historic powers of the States or when it legislates in traditionally sensitive areas that affect the federal balance.”

• IRCA regulates employment, which is a traditional area of state control, as the Supreme Court decided in an immigration case a decade before IRCA’s passage. [This] strongly suggest[s] that Congress would have had to speak clearly to bind State government entities in IRCA, notwithstanding the fact that the statute involves federal immigration regulation.

• [Some] may argue that even if States have power over employment generally, that power is limited in this area because “[t]he passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States [citing a Supreme Court case from 1875].”

  However, state hiring does not concern immigration as such; it concerns the State's power to employ people already here. In matters ancillary to the core federal power to exclude and deport, the federal courts have long recognized a role for state-level policymaking.

Whoa, hold on a second. It is startling to see immigration and constitutional law scholars arguing that “state hiring does not concern immigration as such; it concerns the state's power to employ people already here.” They should know better — control over the ability to employ illegal aliens already here is hardly ancillary, but rather central to Congress’ plenary power over immigration matters. Don’t just take my word for it. In 2002, the Supreme Court concluded in Hoffman Plastic Compounds, Inc. v. NLRB that:

IRCA [is] a comprehensive scheme prohibiting the employment of illegal aliens in the United States. ... IRCA “forcefully” made combating the employment of illegal aliens central to “[t]he policy of immigration law.” ... It did so by establishing an extensive “employment verification system[]” ... designed to deny employment to aliens [not authorized to work] ... . This verification system is critical to the IRCA regime. [Emphasis added.]

You don’t like the Supreme Court because Hoffman prevented the National Labor Relations Board from awarding back pay to illegal aliens? Listen to the District Court for the Middle District of Pennsylvania, which in 2007 in Lozano v. City of Hazleton invalidated a town ordinance that, among other things, made it unlawful for businesses to recruit, hire, or employ unlawful workers and required employers to collect identification documents and provide them to the town in order for it to verify work authorization with the federal government. The district court concluded that:

• IRCA is a comprehensive scheme. It leaves no room for state regulation.

• Immigration is a national issue. The United States Congress has provided complete and thorough regulations with regard to the employment of unauthorized aliens including anti-immigration discrimination provisions.

As a side note, I certainly don’t remember any of the scholars at the time arguing that the district court got it wrong and that the Hazleton ordinance should have been affirmed since it dealt with an ancillary issue.

You don’t like the Middle District of Pennsylvania? Listen to the Obama administration. In 2011, it argued to the Supreme Court in an amicus brief in Chamber of Commerce v. Whiting that:

Congress concluded in IRCA that the INA must prescribe measures to combat the employment of unauthorized aliens, because the availability of such employment undermines the INA’s mission of regulating entry into the United States... . Congress therefore enacted Section [274A] ... Congress thus has brought regulation of the employment of aliens within the INA’s framework for regulation of immigration — traditionally an area of exclusive federal, not state or local, authority.

Don’t like the “Deporter-in-Chief”? Listen to the AFL-CIO, the largest federation of labor unions in the United States. In 2012, it argued to the Supreme Court in an amicus brief in Arizona v. U.S. that:

Together, the purpose of the IRCA and [the Immigration Act of 1990] amendments was to make regulation of the employment of aliens part and parcel of the INA’s overall purpose of regulating “‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’” [quoting Whiting and De Canas]. [Emphasis added.]

The AFL-CIO also argued that Arizona’s imposition of a criminal penalty on employed unauthorized aliens was “directed at ‘deter[ring] the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States,’ ... not regulating employment relationships within the State.” A policy of allowing public universities in California to hire and employ illegal aliens without work authorization can likewise be said to be directed at encouraging and enabling the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the U.S.

The hiring and employment of unauthorized aliens does indeed clearly concern immigration as such. In any event, the scholars go on:

Where Congress “legislate[s] in [a] traditionally sensitive area[] that affect[s] the federal balance,” [citing the 2002 Supreme Court case of Raygor v. Regents of Univ. of Minnesota] courts will not presume it intended to bind States unless it uses “unmistakably clear” language indicating this intention. [citing the 1985 Supreme Court case of Atascadero State Hosp. v. Scanlon] ... [B]ecause IRCA’s prohibition does not mention States .., its language comes nowhere near what would be required to provide such a clear statement. Therefore, it is best read to not bind States.

I in no way dispute the clarity principle when Congress legislates in a traditionally sensitive area that affects the federal balance. In fact, I would suggest that the scholars cite the Supreme Court’s conclusion in Apex Hosiery Co. v. Leader in 1940 that:

The maintenance in our federal system of a proper distribution between state and national governments of police authority and of remedies private and public for public wrongs is of far-reaching importance. An intention to disturb the balance is not lightly to be imputed to Congress.

And I would suggest they cite the Supreme Court’s 1971 ruling in United States v. Bass that:

[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States... . In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.

The scholars should also have cited the Supreme Court’s clarification to this principle in its 1947 decision in Rice v. Santa Fe Elevator Corp.:

[W]e 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. Such a purpose may be evidenced in several ways... , [one of which being that] the state policy may produce a result inconsistent with the objective of the federal statute.

Just this summer, the Sixth Circuit utilized the Rice court’s assumption in Adkisson v. Jacobs Engineering Group. In 1989, the Supreme Court approvingly cited Rice, concluding in Will v. Mich. Dept. of State Police that “Congress should make its intention “clear and manifest” if it intends to pre-empt the historic powers of the States [citing Rice] or if it intends to impose a condition on the grant of federal moneys ... .” Even in Raygor, highlighted by the scholars, the Supreme Court approvingly cited Will, which approvingly cited Rice.

As Rice set forth, one of the ways in which Congress can evidence a “clear and manifest” purpose is if “the state policy may produce a result inconsistent with the objective of the federal statute.” A state policy authorizing its entities to employ illegal aliens would certainly be inconsistent with IRCA’s objective of, as the House Judiciary Committee put it, “deter[ing] employers from hiring undocumented aliens, and thus ... cut[ting] off the magnet of employment.”

And as the Pennsylvania district court concluded in Lozano v. City of Hazleton, “[a]llowing States or local governments to legislate with regard to the employment of unauthorized aliens would interfere with Congressional objectives.” Thus, regardless of whether IRCA’s employer sanctions provisions specifically mention states, Congress evidenced a “clear and manifest” desire to apply employer sanctions to the states (when acting in the capacity of employers).

But we should separately ask whether IRCA’s employer sanctions should even be considered an example of Congress legislating in a traditionally sensitive area that affects the federal balance. I posit that they are not — and thus the clear statement rule doesn’t even apply.

First, I should note that state employment laws related to aliens have long been subject to constitutional constraints and were regularly invalidated by the Supreme Court. As the Court explained in Ambach v. Norwick in 1979:

State regulation of the employment of aliens long has been subject to constitutional constraints... . [In 1886], [we] struck down an ordinance which was applied to prevent aliens from running laundries, and in ... [1915], a law requiring at least 80% of the employees of certain businesses to be citizens was held to be an unconstitutional infringement of an alien's “right to work for a living in the common occupations of the community ... .” ... . [In 1948, we] held that the “ownership” a State exercises over fish found in its territorial waters “is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so.” ... . [In our 1971 decision in] Graham v. Richardson ... [we] for the first time treated classifications based on alienage as “inherently suspect and subject to close judicial scrutiny.” ... Applying Graham, [we have] held invalid statutes that prevented aliens from entering a State's classified civil service, ... practicing law ... [and] working as an engineer.

So, on what basis do the scholars make their argument? They contend that:

[In its 1976 De Canas v. Bica decision, t]he Supreme Court held ... that a state law regulating the employment of non-citizens operated in an area of traditional state power, and therefore was not impliedly preempted by the federal government’s immigration power, even though the “power to regulate immigration is unquestionably exclusively a federal power.” ... As the ... Court explained in [Arizona v. U.S., “a]s initially enacted, the INA did not prohibit the employment of illegal aliens, and this Court held that federal law left room for the States to regulate in this field.” ... While Congress later displaced such state laws when it passed IRCA, that statute obviously did not change the background rule that employment regulation is a traditional matter of state concern... . All regulations concerning the hiring of undocumented immigrants ... fall squarely within the States’ traditional powers in the first instance, rather than within the federal government’s power over immigration.

Whoa, wait again. In Arizona v. United States, the Supreme Court explained that:

When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject... . At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.”

In De Canas itself, the Court had found that:

• States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State ... . California's attempt ... to prohibit the knowing employment by California employers of persons not entitled ... to work here, is certainly within the mainstream of such police power regulation. Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions... . In attempting to protect California's fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens, ... [the law] focuses directly upon these essentially local problems and is tailored to combat effectively the perceived evils. [Emphasis added.]

• Congress’ failure to enact ... general sanctions [criminalizing the knowing employment of illegal aliens] reinforces the inference that may be drawn from other congressional action that Congress believes this problem does not yet require uniform national rules and is appropriately addressed by the States as a local matter.

• [Regarding two prior decisions in which the Supreme Court had struck down State statutes as preempted by Federal immigration law,] to the extent those cases were based on the predominance of federal interest in the fields of immigration and foreign affairs, there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country. [Emphasis added.]

• [W]e will not presume that Congress ... intended to oust state authority to regulate the employment relationship covered by [the law] ... in a manner consistent with pertinent federal laws. Only a demonstration that complete ouster of state power — including state power to promulgate laws not in conflict with federal laws — was “‘the clear and manifest purpose of Congress’” would justify that conclusion... . Respondents ... fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular. [Emphasis added.]

• [A]bsent congressional action, ... [the law] would not be an invalid state incursion on federal power.

The situation of California desiring to itself employ illegal aliens is quite far afield from the situation of California desiring to prohibit the employment of illegal aliens. The latter-day California (should it decide to take the scholars’ advice) would not be acting to protect the workers of California — far from it. And, per the AFL-CIO, it might not be considered to even be regulating employment relationships. The latter-day California would not be seeking to prohibit the employment of those whom the federal government has already declared unable to work in the U.S., but would be seeking the exact opposite result. One should not assume that the Court in 1976 would have been OK with a state law authorizing the employment of such aliens.

In addition, just because a state’s power to “prohibit the knowing employment ... of persons not entitled ... to work here” is “within the mainstream” of state police powers, and just because, pre-IRCA, Congress did not believe the problem of illegal alien employment to “require uniform national rules”, does not mean that Congress’ eventual recognition of the need for such rules makes this a “sensitive” area that “affect[s] the federal balance”. States were on notice that, historically, many state rules regarding the employment of aliens had been struck down by federal courts, and that Congress might someday decide that the employment of illegal aliens, in particular, required uniform national rules. Federal action on this issue would hardly imperil the federal balance.

Argument #4: The Governor Is Undocumented?

The scholars argue that:

If IRCA bound State government entities, it would at the very least alter the Federal-State balance by intruding into an area of traditional State authority: the States’ power to dictate the qualifications of their own officials. A State has the “broad power to define its political community” ... [and the right] to determine the qualifications for State positions “rest[s] firmly within a State’s constitutional prerogatives [citing the 1973 Supreme Court decision in Sugarman v. Dougall].” The Supreme Court has long recognized this power as foundational to the structure of the nation’s federalist system. “It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers ... should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States.” [citing the 1991 decision in Gregory v. Ashcroft, which in turn cited a 1900 decision]. Because “each State has the power to prescribe the qualifications of its officers … [and] it is a power reserved to the States under the Tenth Amendment,” application of IRCA’s prohibition to at least some State employment decisions could well be unconstitutional.

This is the strongest argument the scholars make. Could it be the case that IRCA is unconstitutional to the extent that it prohibits states from allowing illegal aliens to be their “most important government officials”? Very possibly, when thinking in terms of officials like elected officeholders and high governmental policymaking political appointees and bureaucrats. I could certainly imagine California electing a DREAMER to be governor or a non-citizen policy czar. But maybe not. As the scholars acknowledge:

• [Some] may argue that Sugarman and the cases following it give States some discretion to exclude certain people from the “political community” and thus public office, but not to include people excluded under federal law... . Ambach [states that] “It is because of th[e] special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.”)

• Ultimately, the fact that the Court’s prior cases on this issue concern limitations on the political community makes it impossible to know whether a future decision might draw such a distinction.

But, in any event, these Supreme Court decisions involved “persons holding State elective or important nonelective executive, legislative, and judicial positions”. What does that have to do with potential employees of the University of California, say professors or maintenance workers? As the scholars note:

Opponents of [our] view may argue that States’ power to dictate their employees’ qualifications is reserved only for the “most important government officials,” [citing Gregory] “to persons holding State elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.”)... . [citing Sugarman]

The scholars’ retort is that “[u]nder Sugarman and its progeny, the Court has defined the category of ‘important government officials’ quite broadly, to include police officers and public school teachers”. Hmmm.

As to police officers, in 1978 the Supreme Court ruled in Foley v. Connelie that:

• The essence of our holdings to date is that ... the right to govern is reserved to citizens.

• To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.

• The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers ... . [which] affects members of the public significantly and often in the most sensitive areas of daily life ... .

  An arrest ... is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot.

  ...

  Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals... . A policeman ... is not to be equated with a private person engaged in routine public employment or other “common occupations of the community” ... .

  [I]t would be ... anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers ... . Police officers very clearly fall within the category of “important nonelective ... officers who participate directly in the… execution ... of broad public policy.” ... [C]itizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.

OK, so maybe it is conceivable that the Court would find that states have a constitutional right to hire illegal alien police officers. However, just because the Court found that states have the right to impose a citizenship requirement on police officers does not necessarily mean that it would also find states to have the right to hire noncitizen officers (should Federal law ever bar noncitizen eligibility), or even the right to hire illegal alien noncitizen officers already barred by federal law from employment. As the Court stated, “it would be ... anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers” and “citizenship bears a rational relationship to the special demands of the particular position.”

What about public school teachers, who bear an obvious similarity to public university faculty? The Supreme Court ruled in 1979 in Ambach v. Norwick that:

• [New York] forbids certification as a public school teacher of any person who is not a citizen .., unless that person has manifested an intention to apply for citizenship [with exemptions possible]... .

• [S]ome state functions are so bound up with the operation of the State as a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self-government. In Sugarman, we recognized that a State could, “in an appropriately defined class of positions, require citizenship as a qualification for office.”

• The rule for governmental functions, which is an exception to the general standard applicable to classifications based on alienage, rests on important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State. The Constitution itself refers to the distinction no less than 11 times. ... [T]he status of citizenship was meant to have significance in the structure of our government ... . It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.

• In determining whether, for purposes of equal protection analysis, teaching in public schools constitutes a governmental function, we look to the role of public education and to the degree of responsibility and discretion teachers possess in fulfilling that role... . Each of these considerations supports the conclusion that public school teachers may be regarded as performing a task “that [goes] to the heart of representative government.”

  ...

  Public education ... “fulfills a most fundamental obligation of government to its constituency.” The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by our decisions:

  “Today, education is perhaps the most important function of state and local governments... . It is the very foundation of good citizenship... . a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

  ...

  Other authorities have perceived public schools as an “assimilative force” by which diverse and conflicting elements in our society are brought together on a broad but common ground... . These perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.

Imagine public education as an assimilative rather than a divisive force — such an old-fashioned notion! In any event, I digress. Back to the Court:

Within the public school system, teachers play a critical part in developing students' attitude toward government and understanding of the role of citizens in our society ... . [T]eachers are in direct, day-to-day contact with students [Of course, except when they utilize their union’s power to shut schools down.] ... They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring ... . [and] serve[] as a role model for ... students, exerting a subtle but important influence over their perceptions and values ... . [A] teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen's social responsibilities. This influence is crucial to the continued good health of a democracy.

...

[W]e think it clear that public school teachers come well within the “governmental function” principle recognized in Sugarman and Foley. Accordingly, the Constitution requires only that a citizenship requirement applicable to teaching in the public schools bear a rational relationship to a legitimate state interest.

It might be assumed that the Court would analyze the right of a state to hire public university professors in the same manner as it does public school teachers. But this is not a certainty. The Court spent much of its time in Ambach focusing on the importance of public school teachers in “awakening ... child[ren] to cultural values, in preparing [them] for later professional training .., in helping [them] to adjust normally to [their] environment” and the like. Putting Doogie Howser aside, very few higher education students are minors. The Court might not consider the ability of professors to do the same for college “kids” to go to “the heart of representative government”.

Assuming that the Court would analyze public university professors in the same manner as public school teachers, it is conceivable that the Court would find that states have a constitutional right to hire illegal alien university professors. However, even if the Court were to find that states have the right to impose a citizenship requirement on public university professors, this does not necessarily mean that it would also find states to have the right to hire noncitizen professors (should federal law bar noncitizen eligibility), or even the right to hire illegal alien professors. As the Court stated in Ambach, “the status of citizenship was meant to have significance in the structure of our government... . It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.” As the scholars state, “it is impossible to know whether a future decision might draw such a distinction.”

Conclusion

Hopefully, good sense will prevail, and the proposal to allow California public universities to hire illegal aliens will never advance beyond advocacy pieces. The Supreme Court mentioned as an aside in Hoffman that “awarding backpay [to an illegal alien] ... not only trivializes the immigration laws, it also condones and encourages future violations.” It could just as easily be said that allowing state universities to knowingly hire and employ illegal aliens trivializes the immigration laws, and condones and encourages future violations.

If California, or another state, ever authorizes state entities to employ aliens not authorized to work under federal law, and the federal government challenges the decision, I would predict that IRCA will be found to encompass state entities within its employer sanctions regime. The question as to whether the states might be found to have a constitutional right to hire public university professors is the more interesting question.