Thursday, September 18, 2008

271. Latest 9th Circuit Case

The latest 9th Circuit case, Chicanos Por La Causa, Inc. vs. Napolitano is very interesting in light of our CNMI Governor's lawsuit against the U.S.

In the CPLC case, the Arizona Legislature passed a licensing law that revokes licenses of businesses that hire illegal aliens. The law requires that Arizona employers verify employment on-line using the federal website system.

The 9th Circuit said that federal immigration law pre-empts state law as to sanctions for recruiting and hiring illegal aliens, pursuant to 8 U.S.C. sec. 1324a(h)(2), except that states retain rights over licensing and similar matters.

In this case, the 9th Circuit held that the state law that requires revoking the license of a business for employing illegal aliens is within the state's rights, and not pre-empted. It held that the state could require employers, for its state licensing, to use the federal employee-status verification system. It cautioned that its holding was limited to the facial challenge, and indicated that when the law is actually implemented, it could be subject to challenges as applied.

I find this interesting because one of the claims raised in the lawsuit by Governor Fitial is that P.L. 110-229 pre-empts our local "labor" laws. Federal immigration laws directly impose limits on recruitment and hiring of foreign workers. Clearly, under federal immigration law, federal immigration measures are permitted to pre-empt even states' laws (in some instances and to some degree), except for local concerns like business licensing.

The Fitial administration, in its complaint, likened States' rights under the U.S. Constitution (Articles 1 and 10) to our local self-government over internal affairs under the Covenant, but that doesn't seem to bolster the claim that application of federal immigration laws here violates those self-government rights.

This case is a 9th circuit decision; and the Administration's suit against federalization is filed in the Washington, D.C. district court, part of the 2nd Circuit, I think. So this case isn't binding precedent, but it's still informative of how the federal courts view the relationship of U.S. immigration law to state's rights and laws.

In my opinion, it doesn't seem to lend any support to the Fitial lawsuit challenging federalization of our immigration here.

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