Arizona Governor Signs Law Making It Crime to Hire Migrants

Napolitano cites inaction by Congress

PHOENIX (By Matthew Benson, Arizona Republic) July 3, 2007 — Gov. Janet Napolitano on Monday signed sweeping legislation against employers of undocumented workers, targeting the state's market for illegal labor with what she called "the most aggressive action in the country."

The penalty for violators: the suspension of a business license on the first violation and permanent revocation on a second, amounting to a death sentence for repeat offenders.

"It's monumental. It's a change from anything we've done in the past," said Speaker of the House Jim Weiers, R-Phoenix. "It's time for the states to start stepping up and stop waiting for Congress."

The law takes effect Jan. 1, significantly raising the stakes for more than a quarter-million undocumented workers believed to reside in Arizona and the businesses that employ them.

Between now and then, Napolitano hinted at calling legislators back to the Capitol for a special session this fall to amend flaws in the bill, including a provision that could force the closure of hospitals, power plants and other critical facilities if they're cited for making illegal hires. Her other concerns included "woefully" inadequate funding for enforcement and the lack of a non-discrimination clause to ensure it's enforced fairly.

Napolitano's signature comes just days after the failure of a comprehensive immigration-reform measure being considered by the U.S. Senate. She again lamented that proposal's collapse and blasted Congress anew in saying Arizona could no longer afford to wait.

"We're dealing somewhat in uncharted territory right now - uncharted territory because of the inability of the Congress to act," Napolitano said. "The states will take the lead, and Arizona will take the lead among the states."

But opposition to the new law was swift, led by Hispanic activists and the business community. Eight minutes after the governor's announcement that she had signed the bill, the Arizona Chamber of Commerce issued a statement calling it "a crippling blow to Arizona business."

That opposition coalesced in a Capitol hearing room where critics vowed a fight.

"We have five months for the business community to rally and come to the table and demand that the House and Senate come back to the table and work on this bill," said Mary Rose Wilcox, a Maricopa County supervisor and Hispanic activist. "People are just incensed about this. This will be disastrous for the state of Arizona."

A legal challenge regarding the constitutionality of the new law is already in the works.

Phoenix employment attorney Julie Pace said that challenge will assert that Arizona has overstepped its authority by moving into the arena of immigration law. The U.S. Constitution gives power over immigration policy to the federal government.

"I will make a prediction that sanctions will never be imposed because they can't ever become workable," said Rep. Ben Miranda, D-Phoenix. "It will never be implemented properly. It will never function."

Beginning Jan. 1, all Arizona employers will be required to check the legal status of their employees through a federal database known as the Basic Pilot Program. The accuracy of that database and its ability to handle 130,000 to 150,000 Arizona businesses that will now use it has been questioned. Napolitano sent a letter Monday to congressional leaders asking for improvements and federal investment to ensure Basic Pilot is up to the task.

But the day was one of relief for those who for years have asked for a set of state sanctions against businesses that dabble in illegal labor. Perhaps chief among them is Rep. Russell Pearce, a Mesa Republican who sponsored the bill and was at the forefront of numerous similar efforts in the past.

"Anyone worried about this bill ought to be worried about their hiring practices," said Pearce, who called the measure "the toughest yet fairest employer-sanction law in the country."

An even stricter set of employer sanctions waits in the wings, led by a citizens group that hopes to get its proposal on the 2008 ballot. That measure, which would revoke a violator's license on a first offense, loomed over the development of Pearce's bill and was again noted on the day of its signing. The hope among many lawmakers is that the new law will short-circuit an initiative some consider too drastic.

"The main concern is you've got an initiative out on the street that's growing momentum every day," Weiers said. "If it goes to the ballot, I suspect it'll win overwhelmingly."

The new law has problems of its own, Napolitano conceded. She has already spoken with Weiers and Senate President Tim Bee, R-Tucson, about the potential of a special session. Bee said he was open to the possibility. Weiers noted that any changes would have to be scripted in advance.

Issues that Napolitano says need to be corrected in the new law include:

• Insufficient funding for enforcement.

• Overbroad language that could cause a chain of businesses to be penalized if a single location was cited.

• Lack of an exemption to ensure that critical facilities such as hospitals don't have to temporarily close their operations if undocumented workers are found among their staffs.

"For an immigration violation for hiring a nursing aide, are you going to close down a nursing home?" Napolitano asked.

Observing that "this is not a doorway for discrimination against anyone," Napolitano said she'd like lawmakers to add a non-discrimination clause to assure residents that they won't be targeted based on their race or ethnicity.

Those problems aside, Napolitano said she viewed it as better to move forward with a new law than back to Square 1 next session with a veto.