What Ever Happened to HB 1084,
the Oklahoma Taxpayer and Citizen Protection Act of 2007?
HB 1804 was a strict anti illegal alien law introduced by Rep. Randy Terrill in 2007. It made it a felony to enable an illegal alien in any manner, even giving them a car ride, if they were suspected of being in the country illegally. It prohibited the state from providing health care, education, and any other service to illegals and required police to check the immigration status of anyone suspected of being here illegally. Here is a rundown of the sections of the law:
Section three made it a felony to transport, move, or attempt to transport any illegal alien. Or to conceal, harbor, or shelter from detection by law enforcement of any illegal alien. The penalty was no less than one year's of prison and a $1000.00 fine.
Section four prevented any state agency, local government, or public school district from issuing any form of ID card to an illegal alien including voter ID cards, drivers licenses, and birth certificates.
Section five required that any state of local law enforcement agency verify the citizenship status of anyone arrested for a felony or DUI. It required that anyone that wasn't verified to be a citizen be reported to the federal Homeland Security agency.
Section six was definitions of words for the law.
Section seven provided that all state agencies, local governments, and school districts use the federal E-Verify system to verify the immigration status of all new employees. Any contractor may bid for state or local government contracts unless they use the E-Verify program. And it made it illegal to dismiss a legal resident while keeping illegal aliens on the payroll. That last part was struck down in a federal court challenge.
Section eight required every state and local government agency to verify the immigration status of all applicants 14 years and older for state or local welfare benefits and prevented the issuing of benefits to illegals. Those receiving welfare benefits must sign an affidavit stating they are here lawfully and lying on that issue would be met with a five year prison term in state prison.
Section nine required that independent contractors provide employment verification through E-Verify or the contracting entity would have had to withhold state income tax at the top rate from the payment or be liable for that tax themselves. That section was struck down in a federal lawsuit.
Section ten ordered the Oklahoma AG office to enter into a memo of understanding between the state and the feds to authorize state and local law enforcement agencies to enforce federal immigration and customs laws. It prohibited any local government from preventing, prohibiting, or hindering local law enforcement agencies from communicating or cooperating with the feds on immigration verification or enforcement.
Section eleven prevented illegals from getting resident status tuition at any college or university in the state or receiving any post secondary scholarships or financial aid.
Section twelve created the Fraudulent Documents Identification Unit in the Oklahoma Department of Public Safety to investigate and arrest those who sell or distribute fraudulent ID documents.
Section thirteen made technical amendments to the requirements for determining lawful residency for receiving the lower state resident tuition at any college or university in the state.
Push back was immediate. In October of 2007 a Latino coalition filed a federal lawsuit asking that the legislation be overturned but the lawsuit was dismissed due to the lack of standing by the plaintiffs. By November of 2007 the media was reporting great fear in the illegal alien community and that the local immigrant businesses were suffering as a result. Then in June of 2008 a federal judge issued an injunction against two parts of the bill, the requirement to check a worker's eligibility and the requirement of businesses to check a contractor's immigration status or to withhold the state income tax from the contract payment.
In mid 2011 the State Supreme Court had ruled that nearly all of HB 1804 was constitutional. The court did strike down the no bail to illegal immigrants arrested on felonies or DUI, stating that it was up to the court to decide if the defendant is a flight risk. The court also removed one section pertaining to education simply because it wasn't immigration related and thus log rolling.
By December 2012 an appellate ruling preserved the government contractor requirement to use E-Verify but it struck down the tax withholding on contractor payments and the discrimination liability from retaining illegal alien workers after firing or dismissing citizens workers.
The December 2012 ruling was a result of the Chamber of Commerce suing the State and was settled by AG Scott Pruit by accepting the 2010 ruling by the 10th U.S. Circuit Court of Appeals. To this day it remains a felony to harbor, transport, or keep an illegal alien in Oklahoma but the law is not being enforced. The Chamber of Commerce had lost an earlier case in the U.S. Supreme Court, Chamber of Commerce of the United States of America v. Whiting, +131 S.Ct. 1968 (2011), that upheld Arizona state law requiring that employers use E-Verify.
Based upon all of this, exactly what are the legal theories being used to suborn the will of the people to enact state legislation to protect the citizens and the state from the massive influx of illegal aliens?
Since around 2007 many states have tried to deter illegal aliens from settling in their state by limiting the hiring/employment of illegals, restricting landlords to rent to illegals or restricting illegal aliens from occupying a structure within the state, or deny illegal aliens access to state or local services or benefits. Some were upheld, others overturned, resulting in a hop scotch pattern of rulings from various appellate courts. And as the feds legislate what aliens can receive benefits or change federal immigration law that further restricts what state and local governments can do. The Third, Ninth, and Tenth Circuits came to different conclusions prior to SCOTUS's ruling in Chamber of Commerce of the United States of America v. Whiting so at least the right of a state to enforce the use of E-Verify is now the law.
Challenges to state and local immigration related laws generally depend on three basic lines of legal theory:
- preemption by federal immigration law and thus unenforceable by federal or state courts.
- Depriving persons of equal protection of the law in violation of the 14th Amendment.
- Depriving persons of property or liberty interests without providing due process in violation of the 14th Amendment
The first, preemption, comes from the Supremacy Clause of the U.S. Constitution, which establishes federal law as the law of the land. This prevents states from taking actions that would clash with established federal law if the laws conflict with, interfere with, curtail, or even complement the federal law with additional regulations. Congress can though preempt local or state law if it expresses preemptive intent, or if a court decides that Congress intended to handle that regulator area therefore precluding state or local action in that area, or if a state or local law conflicts with or frustrates a federal law.
As immigration is a federal domain, only Congress can establish the law and it did in 1952 with the Immigration and Nationality Act and again in 1986 with the Immigration Reform and Control Act. The latter legislation amended the first to combat illegal employment. Both laws set categories of legal aliens and grants some rights to the same while they also set enforcement systems against illegals
The problem though is that federal law is king even if the laws are not being enforced. In De Canas v. Bica, the courts ruled that state laws that are related to immigration wouldn't be an incursion on federal power as long as Congress hadn't specifically intended to override state power on immigration. As long as the state law doesn't impede the federal law a state law can stand. Obviously the state and city sanctuary laws are patently illegal and void but a law that mirrors federal law is completely constitutional.
The next set of challenges are the Equal Protection Clause based challenges. The 14th Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Equal protection doesn't invalidate putting “persons” in categories and treating them differently as long as there is a rational basis for treating different persons in different manners. Simply put, does the government that is discriminating have a legitimate government interest in treating people differently. If the law sets out a suspect class of people or it affects a fundamental right guaranteed by the Bill of Rights then the standard raises to strict scrutiny where the state or local government must prove a compelling government interest for treating people unequally.
The rub is that word “persons”, not citizens, not aliens, persons. SCOTUS has ruled that all are entitled to equal protection even if the “person” is here illegally. In Plyler v. Doe, SCOTUS ruled that even illegal aliens were entitled to get a free public education at the elementary and secondary level. The court did find that illegal aliens weren't a suspect class and that a free public education was not a fundamental right but they choked on the hardship that would result to a class of people that they thought were not accountable for being in the U.S. Illegally, the kids. That ruling is ripe to be overturned with the new SCOTUS judges that Trump has appointed and a good fight now would take several years to get to the Supreme Court meaning that additional judges might well be appointed that would uphold common sense and the rule of law over emotion. The arguments of the state conserving public education resources, preventing a further flood of illegal aliens, and maintaining high quality education were brushed aside.
Then there is procedural due process, the 14th Amendment provision that depriving a person of life, liberty, or property without due process of law is wrong and illegal. Since SCOTUS has ruled that due process from the 14th and the 5th Amendment applies to illegals we have to provide a court hearing and process before automatically denying an illegal alien benefits or rights. Due process doesn't mean we can't act as a society, it means we have to be deliberative and ensue that everyone is treated fair and just with a chance to be heard.
As to the needed requirements of due process, that was set down in Mathews v. Eldridge, where SCOTUS laid out three factors, the private interest that will be affected by the official action, the risk of wrongly depriving a person of that interest and the value of any additional safeguards, and the government's interests including the administrative and fiscal burdens that the additional safeguards would require.
At the end, the state or local government should provide an ability to contest the action that might lead to them losing something including advance notice of the taking and a hearing before an impartial judge. Discovery of evidence procedures and the right to confront witnesses might be required if the loss of rights or interests is large. These protections apply only to direct government action, such as the rounding up of illegals or seizing property, not the by products of changes in the law. If an immigrant business folds because all of their illegal customers are driven away, too bad for them.
Those were the three causes of action. Now we will look at how these causes of action might impact the three types of laws restricting illegal aliens.
Employment restrictions on hiring illegals were thought to be subject to preemption and due process claims but the SCOTUS decision on the Arizona E-Verify law has settled most of that. The two major federal laws on illegal immigration both established penalties for hiring illegals, recruiting them, or continuing to employ them. The federal laws did permit licensing and similar laws to be enacted by the states and local governments but not civil or criminal sanctions upon employers of illegals. Local and state laws can take a business license or a professional license of an employer for hiring illegals. A contractor could lose his license to contract with homeowners or a restaurant might lose their licenses to sell liquor or collect sales tax or a health inspection certificate, all of which could close the restaurant.
Why? Because Congress has shown no interest in regulating those sort of things, thus the states are free to do as they wish. All of this ignores the enumerated powers of the federal government of course but practically as that isn't being enforced we will ignore that. And state and local licensing was specifically preempted by Congress in the legislation anyway.
In order for a preemption challenge to work the plaintiffs would have to prove that the state or local laws established standards different than those already in effect in federal law and impose penalties that are different than those already established under federal law. These laws would also have to use a different standard or procedure for determining who is an illegal alien or give the employer less time to resolve any issues or lower the standard that determined if the employer was aware that the employee was illegal. Mirroring existing federal law is perfectly fine.
The law of the land is now that states CAN force employers to use the federal E-Verify program and can remove licenses if the business is found to be employing illegals.
Moving on to due process in the hiring and employment of illegals, we find that as long as due process is allowed for the employer to know in advance of the charges, the ability to contest the charges before an impartial judge, and the ability to obtain evidence and confront witnesses, the state can pull a business license if state law says it is illegal to hire illegal aliens and the company is found guilty of doing so. The only catch is that the law must provide guidance to the employer on how to determine if an applicant or employee is illegal, give the employer the chance to review any complaints against them, and the ability to ask for a review if an employee is found to be illegal.
The second type of law typically enacted is restrictions on tenancy or dwelling by illegals and the preemption doctrine and the 14th Amendment once again have to be considered. As this involves a basic right, to live in a home or dwelling, any law would have to be compliant with federal law as it infringes the right of immigration. I know, splitting hairs, you can live there but can't work there and that is because Congress hasn't specifically addressed illegal aliens renting or living in private homes. One way to strengthen such a law is to use the same categories of aliens in the original federal statutes and the same determinations as to who is legal and who is illegal. The federal laws already cover harboring of illegal aliens and provides penalties so any new state or local law would need to mirror exactly the federal statutes. Worse, if the court found that the federal government isn't prioritizing the removal of illegals attempting to force the feds to spend money and resources picking up illegals found to be renting a home illegally under state law might let a court overturn the law.
With preemption out of the way we look at the equal protection angle of a court challenge to any state or local law that outlawed illegal alien renters or dwellings. One of the problems will be U.S. Born children of the illegals who claim citizenship (yeah, I know, that needs fixed or reinterpreted too). As we have already explained, it is persons, not citizens, that have these protections. There have been some successes in states limiting aliens living here legally as long as the state demonstrates a compelling public interest. One federal district court ruled that it was possible to impose restrictions upon illegals despite the 14th Amendment as the restrictions weren't based upon race or national origin, merely immigration status and the state had a compelling interest in controlling crime and conserving public resources.
Cases involving kids or legal spouses of illegal aliens are tougher.
Now to due process challenges for laws that restrict renting to illegals. Property rights of the landlord have to be considered including his right to rent the property. As the illegal might face arrest or financial fines any laws must provide notice, a hearing before an impartial judge, the ability to contest the decision as well as the right to confront and gather evidence.
The last type of law that is passed in an effort to curtail illegal immigrants is the restriction of benefits or services. The preemption and equal protection challenges are tougher to claim as federal law already states that illegals aren't eligible for benefits. What matters is what type of benefit is being denied and how the person was determined to be illegal.
Basically, states and local government can't discriminate against aliens who are living here legally but can in some cases deny benefits and services to those here illegally. In 1996 the Personal Responsibility and Work Opportunity Reconciliation act was passed and it set rules as to what benefits illegal aliens are not entitled to and which benefits have to be provided. Welfare benefits are denied to a wide swath of aliens even if here legally unless the state has passed legislation enabling them to state benefits. Things such as grants, contracts, loans, licenses, retirement benefits, heath benefits, disability, housing benefits, food stamps, unemployment benefits, post secondary education and the like can be withheld from both legal and illegal aliens.
There are exceptions at the federal level, emergency medical care as long as it isn't organ transplants, emergency disaster relief, immunizations, testing and treatments of communicable diseases, and short term services like soup kitchens, counseling, and short term shelter as long as it is at the community level and is needed for protection of life and safety.
The statutes also restrict state and locally funded benefits such as licenses, government contracts, grants, loans, and public assistance. Likewise emergency medical care, disaster relief, and immunizations are required to be given.
With the most common laws and challenges covered, we now look at federal civil rights statutes and how they might affect laws encouraging illegals to move on.
Title VII of the Civil Rights Act prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. But the Supreme Court has ruled that national origin doesn't mean citizenship can't be a basis for refusing to hire someone. National origin is where the immigrant is from and that has no bearing on if the person is here legally and has a right to work. The point is not to focus on race or where they are from and focus on the fact that they are here illegally.
The Fair Housing Act also prohibits discrimination based upon national origin but like employment that doesn't mean being here illegally is a defense. The rule is to focus on legal status, not race or origin.
Then there is 42 U.S.C. § 1981:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exaction of every kind, and to no other.
The key to understanding this is that while it mentions “persons” no court has ruled that illegal aliens are covered by the statute. In all laws there will be a series of definitions in the statutes or court rulings that define what is vague. There have been rulings on the 5th and 14th Amendment that include illegal aliens as “persons”.
So the answer to what can be done to put teeth back into HB 1804 is, quite a lot. Two new SCOTUS justices, one more on the way with RBG tottering on the edge of her grave, and about anything is possible as far as overturning previous settled law. The illegal immigration is massive these days and we have a president running a Department of Justice that is on our side. Imported products continue to drive factories out of the U.S. and jobs are not plentiful in some classes of workers. Security is at a high point as well and so is public spending on education thanks to millions of new kids unable to speak English.
Twenty states are using E-Verify in a mix of mandatory and semi mandatory manner. While I like the idea of civil liberties, there are some things that simply need addressed and seeing that workers are legal residents of the U.S. is a good step toward raising wages so the lower class are self supporting and need less state and federal aid.
Another step is forcing the Labort Department to start visiting job sites and checking for immigration status of contractors and employers alike. If we have to pass legislation that requires a license to work, so be it, just keep the cost at zero, make it online, and require a U.S. birth certificate or proof of legal immigration status. Then fund it all by passing legislation allowing the state to seize vehicles and equipment from illegals found working on job sites or running businesses, along with due process to prevent abuse, and focusing only on legal status. That means checking all businesses regardless of the color or race of the owner and workers. Add stiff criminal penalties for anyone submitting fraudulent documentation and send the scofflaws to the chicken plants to gut chickens for the next five years.
