The California General Assembly Orders State University Officials to Commit Federal Crimes

George Fishman

By George Fishman on June 5, 2024

Summary

Two years ago, 29 law professors assured the University of California that “no federal law prohibits [it] from hiring undocumented students” not authorized to work under federal law because the Immigration Reform and Control Act’s “employer sanctions” don’t apply to the states.
I have previously concluded that the professors’ assurances are incorrect and that if UC does authorize the employment of illegal aliens, IRCA’s employer sanctions will likely be found to apply to UC. I have also noted that the professors failed to explain to UC the risks involved, not only of civil but also of criminal liability, with penalties including possible imprisonment.
Despite the UC regents promising to “to find a pathway to enact a bold policy to hire students who lack legal status” and come up with an implementation plan by November 2023, nothing further happened last year. Then, this January, after a report that DHS had “pressed UC officials to reconsider what it saw as a direct challenge to federal law during an election year”, UC “concluded that the proposed legal pathway is not viable at this time, and in fact carries significant risk” — including for UC employees “who might be subject to criminal or civil prosecution”.
Recently, the California General Assembly passed a bill to prohibit the California State University and California community colleges, and possibly UC, from disqualifying job applicants for being aliens not authorized to work, and to require that they treat IRCA’s employer sanctions as inapplicable based on the professors’ assurance that sanctions don’t apply to the states. But not until after the presidential election!
UC is concerned that the bill could subject its employees involved in the hiring process to civil and criminal penalties and potentially result in UC losing billions of dollars in federal contracts and grants conditioned on IRCA compliance.
Criminal prosecutions are unlikely if President Biden is reelected, but I would anticipate the story changing should former President Trump be elected.

Employer Sanctions, the Professors, and the University of California

In September 2022, 29 law professors assured the University of California (UC) that “no federal law prohibits [it] from hiring undocumented students” not authorized to work under federal law and that the Immigration Reform and Control Act of 1986’s (IRCA) prohibition on the knowing hiring and employment of unauthorized aliens “does not bind state government entities”.

“Employer sanctions” became the law of the land through IRCA, which 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.

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.” Which employers did Congress intend to be subject to these sanctions? As the House Judiciary Committee’s “Summary and Explanation” of IRCA stated, “All employers are required to comply with the verification procedures for new hires.” (Emphasis added.)

What prompted Congress to institute these sanctions? The Select Commission on Immigration and Refugee Policy, established by Congress in 1978 and chaired by University of Notre Dame President Theodore Hesburgh, concluded in its 1981 final report 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.

Getting back to the professors, I have concluded that their assurances are incorrect and that if the UC board of regents does authorize such employment and the federal government challenges it, that IRCA’s employer sanctions regime will likely be found to apply to UC. For those interested in taking a deep dive into the legal issues involved, I offer up the memo prepared by the professors themselves and the law review article I wrote for the Journal of College and University Law challenging their analysis and conclusions.

I have also noted that the professors failed to explain to UC the risks involved, not only to its human resources officers, but also to the regents themselves. For “employer sanctions” violations carry not only civil but also potential criminal liability, and penalties include (and have resulted in) imprisonment.

Employer sanctions’ primary criminal offense involves “pattern or practice” violations: “Any person or entity which engages in a pattern or practice of violations ... shall be fined not more than $3,000 for each unauthorized alien .., imprisoned for not more than six months for the entire pattern or practice, or both.” Other potentially applicable criminal offenses include:

I also predicted an action that UC might take to mitigate its risk if it chose to move forward:

Unless the California State government officially authorizes such action … the UC system would not even have available the police power or constitutional defenses put forward by the professors, and could only rely on the argument that IRCA’s employer sanctions do not apply to any State entity acting as an employer because of Congress’s failure to spell out their application to States. I would thus presume that the UC system would implore the California legislature to pass, and the governor to sign, legislation providing official authorization.

In any event, following receipt of the professors’ assurance, the UC board of regents voted to form a working group to examine the issue and complete a proposed implementation plan by November 2023. Teresa Watanabe reported in the Los Angeles Times that they “unanimously agreed ... to find a pathway to enact a bold policy to hire students who lack legal status and work permits”. She wrote further that UC President Michael Drake and board of regents Chair Rich Leib jointly stated that “[UC] is committed to ensuring that all students, regardless of their immigration status, can pursue and attain a world-class UC education. This should include providing enriching student employment opportunities to all students[.]”

What happened next? Well, November 2023 came and went. Then, Blake Jones reported in Politico on January 24 that “The Biden administration has quietly pushed back against a plan by [UC] to allow thousands of young people without legal immigration status to hold campus jobs.” Jones elaborated that:

Through a series of recent calls, the Department of Homeland Security [DHS] pressed UC officials to reconsider what it saw as a direct challenge to federal law during an election year, according to four university officials.
DHS officials, concerned about a breach of federal law, warned the university that the Biden administration might be forced to sue or take administrative action blocking the effort if the proposal was approved — teeing up an awkward confrontation at a time when the president is already under fire over immigration… .
“It’s complicated because it’s an election year and because of all the legal issues,” said one UC official involved with the negotiations. [Emphasis added.]

Was Secretary Alejandro Mayorkas’ DHS implicitly imploring UC to just wait until after the November elections to implement its plan? If President Biden were to be reelected, DHS could then simply brush off the “direct challenge to federal law” without appearing weak on immigration to voters. Did DHS explicitly implore UC? We may have to wait for the publication of Biden administration “no-holds-barred” autobiographies to find out.

In addition to the Biden administration’s electoral concerns, UC officials also had legal concerns, including concerns regarding possible civil and criminal penalties. Jones also reported on January 24 that “three outside legal opinions solicited by the UC Office of the President have cast doubt on the idea, adding to the reservations of some within the ten-campus system’s leadership, according to a senior leader who has reviewed the analyses”, and reported the next day that “[P]resident [Blake], some regents, and other officials became increasingly skeptical in recent months that the university could hire the students without facing a lawsuit”. Additionally, Mikhail Zinshteyn reported in Cal Matters that:

UC’s general counsel, Charles Robinson, and his legal team were “very skeptical of the legal theory,” said Merhawi Tesfai, a UC regent and graduate student who votes on the board.
Tesfai said the general counsel’s office sought legal analysis from multiple outside law firms, and their conclusion was that “this wasn’t something that they would recommend and that it wouldn’t be legally viable,” Tesfai said, summarizing comments that Robinson and Drake made to him and other regents.

The UC Office of the President certainly did not solicit my opinion. Whether anyone there read my law review article or my article detailing the risks of civil and criminal sanctions, I cannot say.

In any event, on January 25 UC announced that its board of regents had “voted to suspend implementation … for one year… [and that] no further regental action will occur without a full vote”. President Drake himself stated that “As an individual, I would like nothing more than to [allow for the hiring of illegal alien students], right here, right now, because it is the right thing to do.” However,

Over several months, we consulted formally with numerous law firms and legal experts inside and outside the University. We also explored other legal options and approaches, including declaratory relief. And we carefully studied the possible, substantial risks — to our institution, to undocumented students and their families, and to other UC staff and other members of our university community.
[W]e have concluded that the proposed legal pathway is not viable at this time, and in fact carries significant risk for the institution and for those we serve. For that reason, it is inadvisable for the University to initiate implementation right now.
[W]e have a fiduciary responsibility to consider all possible ramifications of our actions. We must avoid exposing our students and their families to the possibility of criminal prosecution, deportation, or anything that might force a change in their immigration status.
We must also protect others who would be impacted by this action. That includes other employees who might be harmed — including human resources and legal professionals — who might be subject to criminal or civil prosecution if they knowingly participate in hiring practices deemed impermissible under federal law.
And we must protect our institution, which would be subject to civil fines, criminal penalties, or debarment from federal contracting if the University is found to be in violation of the federal [IRCA]. The University could endanger numerous existing federal contracts and grants that are conditioned on IRCA compliance. [Emphasis added.]

Reaction from the advocacy community was of course swift and harsh. Teresa Watanabe reported in the L.A. Times that:

Regent John A. Pérez, in an emotional dissent, said he had never been “more disappointed” as a board member, and called on his colleagues to lead with courage. Students in the audience, some with mouths taped shut to symbolize their hunger strike over the issue, reacted with fury, calling out, “Cowards!” and other epithets after the 10 to 6 vote, with one abstention.

Watanabe also noted the disappointment of Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at the UCLA School of Law, writing that Arulanantham “said outside legal experts and human resources specialists assessed the legal risk … and found [it] to be relatively minor. ‘We answered every question, but they kept moving the goalposts,’ he said of UC officials.” Of course, Arulanantham wouldn’t be the one assuming the risk of civil and criminal penalties. He was, however, one of the principal authors of the professors’ memo that hadn’t even disclosed that risk.

The California General Assembly Dissembles

Recall that I had “presume[d] that the UC system would implore the California legislature to pass, and the governor to sign, legislation providing official authorization”. Well, my prediction wasn’t entirely on target. The California General Assembly passed legislation alright, but it doesn’t merely authorize California public colleges and universities to employ aliens unauthorized to work under federal law, it orders them to.

On February 14, California General Assembly Member David Alvarez introduced a bill (AB-2586), which the California General Assembly passed on May 22 by a vote of 59 to four (and sent to the California Senate), providing, in relevant part, that:

The University of California, California State University, or California Community Colleges shall not disqualify a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except in either of the following cases:
(1) Where that proof is required by federal law.
(2) Where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

So, what’s the big deal? The bill allows state schools to disqualify student job applicants if they fail to provide proof of work authorization as required by federal law. The big deal is that the bill goes on to say that “[UC], the California State University, and the California Community Colleges shall treat [IRCA’s] prohibition on hiring undocumented noncitizens … as inapplicable because that provision does not apply to any branch of state government.” (Emphasis added.)

As a kicker, the bill provides that “[UC], the California State University, and the California Community Colleges shall implement this article by January 6, 2025”. Of course, as we all now know, federal law provides that the House and Senate convene in joint session on January 6 in the year following a presidential election for the purpose of opening the electoral votes submitted by state government officials, certifying their validity, counting them, and declaring the official result of the election for president and vice president. I guess the Biden administration must also have rung up the California General Assembly and bemoaned “a direct challenge to federal law during an election year”!

Now, in a passage dripping with irony, the bill states that “This article shall apply to [UC], unless it is found to be inapplicable to [UC], then … this article shall apply to [UC] only to the extent that the [UC] Regents … by appropriate resolution, make it applicable.”

What? Well, it turns out, as Adolfo Guzman-Lopez explained in LAist:

The California constitution gives the legislature the power to pass laws to shape policies in much of the state’s higher education system — but not the University of California.
That means legislative workarounds to UC issues — like the employment options for undocumented students — often stop short of a mandate.
How did UC get this autonomy from state lawmakers?
You could say that University of California’s separate — some would say, elite — status was there at its infancy, when state legislators gave UC, then just one campus, the status of public trust ...
... with full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds ...
The university's leaders insisted that autonomy would save [UC] “from the partisan politics and rampant corruption that marked California’s turbulent 1870s,” said UC Berkeley researcher John Douglass via email.
Bottom line: California legislators can pass laws to change the inner workings of the California State University system, and the California community colleges, but not [UC].

Because of this inconvenient provision in the California Constitution, Assembly Member Sabrina Cervantes has proposed a constitutional amendment providing that:

[A]ll students attending [UC], regardless of immigration status, shall be eligible to apply for and accept paid opportunities at [UC], including, but not limited to, employment, fellowships, residencies, apprenticeships, and contract work.

My prediction wasn’t entirely on target for another reason. UC didn’t implore the California legislature to pass, and the governor to sign, legislation. It didn’t even keep its mouth shut. Rather, UC urged them not to! On April 3, following the introduction of AB 2586, Mario Guerrero, legislative director of UC’s Office of State Government Relations, wrote a letter to Mike Fong, chair of the General Assembly’s Standing Committee on Higher Education, stating that:

While the University supports the author’s aim to provide equitable student employment opportunities, there are outstanding concerns about AB 2586 and how to implement such a policy. Those concerns include:
The exposure of our undocumented students and their families to the possibility of criminal prosecution or deportation;
The possibility of employees involved in the hiring process (i.e., faculty, human resources, and legal professionals) being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
Civil fines, criminal penalties, or debarment from federal contracting if the University is in violation of … IRCA … and
The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.
Unfortunately, AB 2586 does not protect our undocumented students or employees from prosecution, nor does it protect the University from the risk of potentially losing billions in federal dollars.

Guerrero also testified before the committee:

The possibility of employees that are involved in the hiring process, whether that's our faculty, human resources, legal professionals being subject to criminal and civil prosecution if they were [to] knowingly participate in practices deemed impermissible under federal law. Criminal fines, criminal penalties, and debarment from federal contracting if the university is in violation of [IRCA], and the potential of loss of billions of dollars in existing federal contracts and grants are conditional on following the IRCA.

I’m not sure whether UC officials are more concerned about potential criminal liability or about losing out on federal cash!

Arulanantham also appeared before the committee and sent a letter to Chairman Fong, He testified that:

If the State of California passes a law that endorses this legal theory and asks or mandates the state universities to follow it, the Federal Government will not then be able to prosecute individual employees of those state universities for following state law.
[W]hat they might be able to do is bring a lawsuit that challenged the interpretation and tried to argue that the law was wrong or that it was preempted or something like that, the only risk of that would just be the lawsuit itself. Now … if the universities lost that lawsuit and they still kept trying to hire people, of course that would present a different question.
But the risk that people would actually be criminally prosecuted for following state law is, in my view, vanishingly small. And we're not aware of any example where people have been criminally prosecuted by the Federal Government for following a law that they were required to follow as a matter of the state.
Fines, both criminal and civil, can only be imposed when there's been adequate notice that the law is clear, that the conduct is prohibited.
[A]t the very least [IRCA] is not clearly enough binding on states, that you can actually fine people for it until a court has addressed the question. Now, if a court addresses the question … it's a different story. But yes, the vagueness constraint applies to both civil and criminal sanctions, and therefore, we think would protect from civil liability as well as criminal liability.

He and Hiroshi Motomura, both faculty co-directors at the Center for Law and Immigration Policy, contended in a letter that:

As scholars who have researched the legal analysis underlying this bill extensively, we write to provide our assessment of the risks raised [by UC].
The letter raises three main concerns, all of which pertain to what might happen should a hypothetical federal administration hostile to undocumented students come to power.
UC expresses concerns regarding risks to human resources employees — presumably the risk of prosecution for knowingly hiring undocumented people in violation of [IRCA]. We have analyzed this issue extensively, and strongly believe the risk here is … minimal. Most importantly, UC seems to ignore that these officials would be following state law by hiring students because state law would require it. It is highly unlikely that a federal prosecutor would bring charges against someone for following a state law without first trying to win a civil suit declaring that law goes beyond the state’s authority to enact. We are not aware of any instances in which federal prosecutors have taken such action. Relatedly, any federal prosecutor considering whether to bring such charges would have to first conclude that the federal law prohibiting such hiring was clear enough to satisfy due process guarantees that every employee would have, including the prohibition against laws that are void for vagueness … . This would be virtually impossible to do after the California legislature had concluded the opposite.
In our view, the only significant risk associated with this law’s passage would be that the federal government could sue to enjoin the law itself. This would not result in anyone having to face criminal prosecution or even pay fines. We respectfully believe that risk would be warranted in order to provide equal educational employment opportunities to all of California’s university students.

Additionally, Zaidee Stavely reported in Ed Source that Arulanantham had stated in a press release that “As AB 2586 recognizes, [UC], California State University, and California Community Colleges have the legal authority to hire any of their students, regardless of immigration status[.]” Interesting, because the professors’ memo to UC stated that IRCA “likely does not bind State government entities”, “on balance, the evidence probably favors a finding that IRCA does not bind States”, and “IRCA is probably best read to not bind the States.” (Emphasis added.) I guess in the interim, Arulanantham has decided to throw caution to the wind!

Look, Arulanantham is probably right in the sense that if President Biden is reelected and Secretary Mayorkas surprises me and actually cares about a direct challenge to federal law not occurring during an election year, the Department of Justice would probably seek to have AB 2586 enjoined and call it a day. However, should former President Trump be elected, I would anticipate criminal charges, if not against human resources employees, then certainly against the regents themselves.

What about Arulanantham’s argument that criminal prosecutions of state officials for criminal violations of employer sanctions would be doomed to failure because IRCA is unconstitutionally vague? It took almost four decades following IRCA’s enactment for anyone to even conceive of the argument that IRCA’s sanctions don’t apply to states when acting as employers!

It would be “virtually impossible” to conclude that IRCA isn’t unconstitutionally vague because “the California legislature had concluded the opposite”?! Methinks the conclusion of the General Assembly had little to do with its renowned legal acumen. After all, as Assembly Member Al Muratsuchi proclaimed at the meeting of the Standing Committee on Higher Education:

I appreciate … the deliberations … being conducted by the [UC] regents … and also the concerns raised by our other public higher education segments. But needless to say, we are not in a court of law. We are a political body here, and I will be strongly in support of this measure.

Rather, I would venture to guess that the motivation of the California General Assembly had more to do with its desire to “nullify” IRCA’s employer sanctions, à la Arkansas Governor Orval Faubus’s desire to nullify the Supreme Court’s 1954 and 1955 decisions in Brown v. Board of Education by sending the Arkansas National Guard to bar Black students from attending Little Rock Central High School.

Topics: Employment Fraud, State and Local Policy, California