When Democrats Go States’ Rights
Last year, California passed a law protecting unauthorized immigrants from employers working with federal law enforcement. This week the Attorney General has issued a warning:
“It’s important, given these rumors that are out there, to let people know – more specifically today, employers – that if they voluntarily start giving up information about their employees or access to their employees in ways that contradict our new California laws, they subject themselves to actions by my office,” state Attorney General Xavier Becerra said at a news conference. “We will prosecute those who violate the law.”
The publicity of the law suggested that any cooperation would be against the law. That didn’t seem right to me since we can be legally compelled by the federal government to cooperate. Turns out, it is more limited. There appear to be five provisions:
- Requires employers to ask immigration agents for a warrant before granting access to a worksite.
- Prevents employers from voluntarily sharing confidential employee information without a subpoena.
- Requires employers to notify their workers before a federal audit of employee records.
- Gives the attorney general and labor commissioner exclusive authority to enforce new provisions of state labor laws.
- Prohibits employers from re-verifying information on employment verification forms, unless compelled to by federal law.
I don’t understand how the first one can possibly pass constitutional muster, unless “nonpublic areas” means everywhere except private lockers and whatnot (and maybe even then). But if “nonpublic areas” means past the lobby, this seems like a nonstarter. I generally like giving states leeway, but this borders on state nullification. The last one also seems iffy to me, assuming they are referring to eVerify. If an employer is on the legal hook for hiring unauthorized workers, they shouldn’t be barred from double-checking and triple-checking their work. Further, eVerify is a federal program and I’m not sure what basis a state has to interfere with that.
I was prepared to agree with the second one due to the word “confidential” but the law itself reads as though any employee information cannot be shared. I would probably need to know the case history to have any sort of assessment on the legality of that. Do employees generally have an expectation of privacy in this regard? Should they?
The notification of federal audit seems reasonable, as does stating clearly that state labor laws are not meant to be an invitation for the feds.
California does seem intent on going as far as the courts are going to let them. In the meantime, employers who employ unauthorized immigrants may be caught between a rock and a hard place. Somebody has to be the test case, right? Except that there is a good chance that nobody actually will. The listed fines are, in the greater scheme of thing, pretty small (between $2-10,000). Much smaller than costs accrued by contesting the law in court. The most it appears to do is provide the employers with an out by saying that they would let the feds in but that would be against state law. But they already have an out.
Conservatives on Twitter and elsewhere are suggesting that this law requires employers to break the law. It doesn’t. The law states over and over again “except as otherwise required by federal law” or “in accordance with state and federal law.” They’re making it sound a lot more comprehensive than the law actually is.
Its proponents, however, appear to be doing the same thing. The statements I’ve quoted from the Attorney General seem also maximalist. There’s not a lot about balancing competing interests or anything of the sort in their language. This is an attempt to give the appearance of going to war with the feds. And they’re doing so on what is unquestionably a federal issue. Utah attempted to pass its own immigration laws:
The Utah legislation seemed like a major triumph in contrast, because it sought to give undocumented immigrants the chance to apply for two-year work permits. They only had to prove that they had already lived and worked in the state and passed a criminal background check; they then had to pay a fine of up to $2,500. The state Legislature passed the bill in March 2011, after receiving broad support from an unlikely political alliance that included conservative Republicans, a statewide business group, Utah’s handful of Democrats, and the powerful Church of Jesus Christ of Latter-day Saints.
They needed the feds to do it, however, and that didn’t happen. The enforcement provisions were struck down by the court, and the accommodation provisions were never signed off by on the feds. Depending on precisely what was in it, I would probably support federal laws that give the state more flexibility in a cooperative manner. Obviously, the Trump Administration isn’t going to be on board with that just as the Obama Administration wasn’t. Ultimately, though, a lot of it can’t be spun off and a lot else shouldn’t be.
Both on a philosophical level and a strictly political one, I am sympathetic to Democrats who want to stand up to Washington. On this particular issue, however, there just isn’t much states can do. Except that they can bark loudly, which appears to be mostly what this is.