Lawsuit halts immigration reform
Latino clergy group charges that a House bill is unconstitutional
By Michele Kraak
Staff Writer
A Tulsa-based Latino group has filed a temporary restraining order against a bill that is supposed to go into effect Nov. 1.
House Bill 1804, which Gov. Brad Henry signed into law May 8, states that it is illegal to knowingly transport or harbor an illegal alien and doing so is a felony.
All businesses, companies and agencies must determine the citizenship status of all employees hired on or after Nov. 1, and police officers who arrest someone for a felony or for driving under the influence must determine the citizenship status of that person.
National Coalition of Latino Clergy Inc./CONLAMIC filed its initial lawsuit Monday, asking for a declaration of rights and for the court to permanently prohibit the act from going into effect.
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The temporary restraining order filed Thursday would prohibit the act from taking effect until the case is decided. The group’s attorney said he expects to hear an answer about the injunction sometime early next week.
The act is called the Oklahoma Taxpayer and Citizen Protection Act of 2007, but law enforcement agencies and courthouses throughout the state have expressed concern about the bill because of the added manpower it will require.
In the petition, the group said the law violates the United States and Oklahoma Constitutions, specifically the plaintiffs’ due process and equal protection rights.
Although the bill is not scheduled to take effect until Nov. 1, the petition said that the amount of media attention it has received has “served as a catalyst for increased enforcement efforts by local and state authorities as well as numerous cases of racial profiling.â€
Prosecuting attorney Rohit Sharma said the group has filed for an expedited hearing and said he thinks it has a good chance of winning.
“[The new law] is allowing the state of Oklahoma to enforce immigration laws, but immigration laws are federal laws,†Sharma said. “(House Bill) 1804 is not a constitutional law.â€
Rep. Randy Terrill and Sen. Jim Williamson coauthored the bill. Williamson said the plaintiffs’ argument is based on the preemption doctrine from the Supremacy Clause of the U.S. Constitution, which states that any federal law trumps any conflicting state law.
“That’s their allegation, [but] we have worked very hard with our legal staff at the legislative level to make sure that we came within the constitutional guidelines, and that we were only dealing with subjects that the states have jurisdiction to deal with,†Williamson said.
He said the bill was not created to increase or support racial profiling but to help minimize a legal issue.
“We have had a lot of pressure from constituents in our district to enforce immigration laws, so we felt HB 1804 was necessary to help enforce the fight against illegal immigration,†Williamson said.
The bill coincides with a Department of Homeland Security program that allows employers to check on the immigration and citizenship status of employees through electronic means. Recently, DHS partnered with the Social Security Administration to match social security numbers with names. Through the E-Verify system, employers are first required to check the SSA program.
If the social security number matches the name, the employer then sends that information to DHS for the citizenship check.
The E-Verify system stems from The Immigration Reform and Control Act of 1986.
The act subjects employers to criminal and civil liability for knowingly hiring an illegal immigrant.
In August, DHS proposed a new regulation that expanded the definition of “knowingly†hiring an illegal alien.
The regulation said if employers do not use the E-Verify system when hiring employees and they are caught hiring illegal aliens, they can be found to have knowingly hired them.
The regulation, called Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, was issued Aug. 15 and was supposed to take effect Sept. 14, but the American Federation of Labor filed a temporary restraining order against the regulation.
The court granted the injunction because of several flaws in the E-Verify system.
An OSU attorney said had the regulation passed, many innocent people could have lost their jobs.
“There are all kinds of failures to match for lots of reasons,†Scott Fern said. “They argued to a federal judge in San Francisco that millions of workers across the country potentially could lose their jobs because of errors in the federal system.â€
About a week ago, the judge issued the second level of injunctive relief, which means it is likely the rule will be permanently stopped.
Sharma said he hopes to get the same result as the labor unions in California.
“We want to have 1804 either have a permanent injunction on it or to have it removed entirely,†Sharma said.
When the temporary restraining order was placed on the E-Verify system, it put a hold on the system across the U.S. However, HB 1804 requires public employers in Oklahoma to use it to check the citizenship status of potential employees.
Williamson said the injunction against the system has no bearing on the bill.
“As long as the employers are making an attempt to use the system, then they will follow the dictates of the law,†Williamson said. “If another court has placed some sort of an injunction on that, then until that injunction is lifted, I don’t see how employers here can be held responsible.â€
Enforcing the law is another major issue. Law enforcement agencies across the state have complained about not having a large enough staff or budget to enforce every aspect of the regulation. A Payne County special judge said the court will have to consider more than simply the constitutionality of the rule.
“[The court has] to determine whether or not it’s feasible, economical and constitutional,†Phillip Corley said. “Anyone from a guy that employs a hundred people to a guy that has a housekeeper cleaning his house [can be held liable].â€
Corley said the financial side could favor the plaintiff.
“A lot of times, legislation is enacted, but it’s not funded,†Corley said. “They don’t fund the police that are going to be doing it or teachers that are going to have to do certain things.
“They don’t come up with the money, so therefore laws get passed that can’t be functionally followed.â€
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"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre
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