Law Office Management
Jan. 2, 2011
Cities Sovereign?
A spate of California municipalities are taking immigration enforcement into their own hands.
Arizona garnered national attention last year for enacting a tough new immigration law, but a handful of California cities have managed to avoid the spotlight even as they enact similar legislation aimed at repelling undocumented immigrants from municipal borders. Last summer, for example, Temecula became the third inland California city—after Lancaster and Lake Elsinore—to pass an ordinance requiring all local businesses to check the immigration status of employees by using the federal E-Verify system, an Internet-based program that compares employment forms with government records. The ordinance, which goes into effect this month, makes participation in E-Verify a condition for holding a city business license. Proponents say it is similar in philosophy to the 2010 Arizona immigration law, under which local police have broader authority to detain individuals suspected of being undocumented, and prosecutors can charge noncitizens with a state crime of failing to carry the proper documentation. "[The Arizona law] is clearly the result of a state taking measures into its own hands to protect its residents and their quality of life," says Temecula City Councilmember Maryann Edwards, who backed the ordinance. "On a smaller scale, municipalities' adoption of E-Verify is a similar situation. This is the only legal way cities may address the issue of undocumented workers." Opponents fault the Temecula ordinance for tying up businesses in red tape and for singling out immigrants. "Employers are stuck in a bind," says Carlos Batara, an immigration attorney in Riverside. "They hire someone to fill the position, but that person can't work until the [E-Verify] process is done. And with this block to working, it will be harder for residents with pending immigration applications to survive until the process is complete." Critics also note that E-Verify has an error rate of 4.1 percent for misidentifying naturalized citizens as unauthorized to work in the United States. Whether cities and states have jurisdiction to enforce immigration policy at all remains a matter of debate. In a staff memorandum, Temecula City Attorney Peter Thorson pointed to a Ninth Circuit case in which the court upheld an Arizona statute requiring businesses to use E-Verify as a condition for obtaining a state business license. The court determined that the law did not, in fact, exceed state authority because the penalty for noncompliance was limited to loss of a license, and did not involve monetary fines. But the dispute is far from settled. Last June the U.S. Supreme Court granted certiorari, and the case was argued to before the high court in December (Chamber of Commerce of the United States v. Whiting, 558 F.3d. 856 (9th Cir. 2009), cert. granted, 130 S. Ct. 3498 (2010)). One question the court is considering is whether a state can require employers to participate in E-Verify when federal law specifies that the system is voluntary. Kevin Johnson, an immigration law specialist and the dean of UC Davis School of Law, says that the Temecula ordinance, along with a host of similar local laws across the country, could be in jeopardy if the high court holds immigration regulation to be solely under the jurisdiction of the federal government. In light of all the ongoing litigation, cities such as Santa Maria that have been considering adopting similar E-Verify ordinances have shelved those plans pending the outcome of Whiting. "Depending on the Court's decision, we will probably see a lot more challenges to these ordinances," says Johnson. "An unprecedented number of state and local bodies have tried to pass their own immigration laws in the last decade, but it's a burning controversy whether they have the jurisdiction to do so. This case gives the Court the opportunity to finally give us some guidance."
Kari Santos
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