Provisions of the Arizona Law That Impose Penalties on Unauthorized Alien Workers Also Enjoined

Written by Gary K. Silberman

The next section enjoined by the court criminalizes any attempt to obtain work or any work as an employee or independent contractor by an unauthorized alien. The United States argued that, like other sections of this law, this provision was preempted by federal law, in that Congress chose to not impose criminal penalties for these actions. Arizona claimed that states possess broad authority to regulate employment so as to protect workers. The state’s argument was bolstered by a Ninth Circuit decision holding that where a state chooses to sanction employers who hire unauthorized workers, a presumption exists that federal preemption does not apply.

The court first noted that the IRCA imposed penalties for employers who knowingly hire, continue to employ, recruit, refer for a fee or even use contractors or subcontractors to hire unauthorized alien workers. The IRCA requires employers to use an “employment verification system.” Federal law provides an escalating system of civil and criminal penalties for violation of these statutes. While employer behavior is the primary target of the IRCA, employees are also covered. The IRCA makes it a civil violation to use another person’s identification document or create or use a fake document.

The court found that Congress had intentionally aimed most sanctions at employers, while providing some deterrent for unauthorized workers, as well. The provisions that required a person to swear under oath that they are a citizen or an alien authorized to work in the United States also provide that forms for doing so shall not be used for any other purpose than the enforcement of the IRCA. The court found that, taken as a whole, Congress made policy decisions concerning how to regulate the employment of aliens and how to penalize unauthorized aliens for violating those requirements. In so doing, Congress intended to and did fully occupy the field with regard to the employment of unauthorized aliens. Since Congress could have made the actions prohibited by the Arizona law illegal and did not do so, Arizona’s attempt to augment federal law is preempted.