FIRST DRAFT OF ABA FORUM COMMITTEE

American Bar Association

Forum on the Construction Industry

_______________________________________________________

STATE REGULATION OF IMMIGRATION

Gerald “Pete” G. Stamper

Barrow & Grimm, P.C.

Tulsa, Oklahoma

Presented at the 2009 Fall Meeting

“The Two-Way Street of Construction Counseling:

Learning From the Ins & Outs”

October 15-16, 2009-08-06

Philadelphia, Pennsylvania

_______________________________________________________

STATE REGULATION OF IMMIGRATION

INTRODUCTION

As the volume of Hispanic immigration increased in the 1990’s and the early 2000’s, the public’s concern about the potential economic and social effects of the immigrants upon employment, schools and social service agencies increased. Public concern quickly became political concern and activity. The concern and activity in Washington attracted the greatest news coverage, but political reaction [a1] was not limited to the nation’s capitol. State legislatures did not ignore the interests and concerns of their constituents about the growing presence of Hispanics in their localities. Hispanics who were not known to be long-time residents were assumed to have entered the country illegally.

While that assumption was obviously unfounded and incorrect, it was encouraged by the news media,. Politicians were not immune from the influence of the information that was disseminated, and reacted to it typically: If illegal immigration of Hispanics is perceived to be a problem, then laws must be enacted to prevent it.

BACKGROUND

Virtually all states and some cities passed laws as a means to prevent illegal-alien Hispanics from entering their borders or staying in the event they succeeded in entering. Oklahoma was certainly not unique in enacting such statutes. Oklahoma law was selected as the example for this presentation because it is widely recognized as the most extreme among the states. Depending upon the attitude of the assessor, Oklahoma immigration law is either the most enlightened or most draconian of the states.

To better understand the milieu from which the legislation came, you need to understand some things about Oklahoma. Various legends about Oklahoma, including the notion that Oklahoma absorbed American Indians when the US bought Indian territories or that Oklahoma is a fictional place from Broadway’s “Oklahoma” or John Steinbeck’s “The Grapes of Wrath,” shape the way much of America thinks about and perceives Oklahoma. Oklahoma is more than just lore, however. In more recent times, Oklahoma is recognized as a primary producer of oil, natural gas and college football.

While no single perception of Oklahoma is entirely correct the perception of Oklahoma in recent times is fairly accurate. Oklahoma, like every other state, has a unique history, populace, political bent and attitude toward “aliens”. Other than the remaining American Indians, Oklahomans, like all Americans, have descended from immigrants and they generally welcome foreign-born newcomers. Support for Oklahoma’s open-door mentality is evidenced by the state’s relations with Southeast Asian “Boat People”.

Immediately north of Texas and bordering New Mexico, Oklahoma, a south-central state is actually considered a southwestern state. Given that Oklahoma is relatively close to Mexico, and that IH-35 fast tracks travelers through Oklahoma to St. Louis and Chicago, Oklahoma is the intended destination of many illegal Hispanic immigrants. A cross-section of Oklahoma’s 1990 and 2000 demographics illustrates one reason for its strong legislative action against the increasing Hispanic population.

Because of the increase of the state’s total population, Hispanics as a percentage of the total state population declined from 5.7% to 5.4% between 1990 and 2000, while the number of Hispanics residing in the state increased by 114.3% during the same period. The U.S. Census Bureau estimates that the Hispanic population of Oklahoma increased an additional 55% from 2000 until 2009, or approximately 100,000 Hispanics. In 2009, Hispanics accounted for nearly 8% of the state’s total 3.5 million population, an increase of about 2.8% since 2000, according to the Oklahoma Department of Commerce.[a2] In one sparsely-populated county, Hispanic residents made up 42% of the population, primarily because its largest employer was a hog producer and pork processor, whose jobs were not attractive to other area residents. In Oklahoma County, the state’s most populous county, the Hispanic population grew by 50% from 2000 to 2008 and presently comprises 12.5% of the total residents.

This trend is not limited to Oklahoma. In 2005, 18.6 million Hispanics were employed in the United States, 13.1% of the total workforce. From 1990 until 2005, the proportion of Hispanics employed in all industries increased by 86%.¹

For some twenty years, the construction industry has seen its workforce gray, particularly in the skilled trades. The failure of construction to attract new, young employees can be attributed to several causes, but two factors are most significant. They are the lure of administrative and technological jobs offering year-around work in clean, air-conditioned buildings with good pay, and fewer labor unions.

Historically, construction craftsmen acquired their skills through apprenticeship programs of the craft unions, and contractors acquired their workers through union hiring halls. Employers involved in collective bargaining agreements usually paid for training programs based upon the hours worked by union members. As less-physically-demanding jobs became more attractive than the custom of following dad to the construction site, enrollments in apprenticeship programs declined to the point that retirements exceeded new journeyman certifications. And, as the hiring halls were less able to fulfill the requirements of the contractors, there was less benefit to the employers for continuing to enter into collective bargaining agreements with the trade unions.

As the trend toward administrative and technological jobs became more pronounced, construction contractors and the unions, jointly and separately, increased efforts to attract young men and women to careers in the building trades. Those efforts had only limited success in solving the problem of the shortage of trained workers. An increase in residential and commercial construction amplified the worker shortage in the 1990s and until 2009, when the recession caused a sharp reduction in all types of buildings.

It is not coincidental that the rate of immigration, particularly illegal immigration, by persons of Mexican, Puerto Rican, Cuban, and other South/Central American descents, all of whom the U.S. Census Bureau refers to as Hispanic, increased dramatically. The construction industry needed workers and immigrants came seeking employment, so [a3] aliens, many of whom had construction skills and experience, and all of whom were willing to work hard, became employed in the building trades in disproportionate numbers, whether or not they had legal authorization to work in the United States.

In 1990, the construction industry employed 704,606 Hispanics, or 9% of the United States’ total workforce. By 2005, that number had increased to 2,577,000, or 23% of the construction workforce in the country. During that period, the number of workers who identified themselves as Hispanic increased by 86% for all industries, while it jumped by 156% for construction.²

About 75% of the 2.6 million Hispanic construction workers were born outside the United States, and 1.7 million of them were not United States citizens in 2005. They were not uniformly distributed across the country, however, and were most likely to live in the South (47%) and West (40%), and least likely to live in the northeastern states (7%). While fewer than 5% of the construction workers in Alaska and West Virginia were Hispanic, the figures were as high as 57% in New Mexico, 54% in Texas, 48% in California, 41% in Nevada, 34% in the District of Columbia and 31% in Colorado.³ In the decade of the 1990’s, the number of Hispanics employed in the construction industry nationally increased by 52.9%.

Because Hispanic immigrants generally bring their families, not only did the number of Hispanic workers in the construction industry increase, but so too did the number of Hispanic students in Oklahoma schools. Although Hispanic enrollment varied by area, several Tulsa schools saw student bodies that were 50% or more Hispanic. In small towns that offered attractive employment opportunities for Hispanics, public school enrollments neared 75% Hispanic.⁴

As the presence of Hispanics grew in Oklahoma, affected communities and [a4] taxpayers who feared that the costs of providing public services would be increased began to agitate to restrict aliens’ access to employment, education and public services. Oklahoma’s legislators were receptive to the requests, and acted in spring 2007.

OKLAHOMA’S LEGISLATIVE EFFORTS TO PREVENT ILLEGAL IMMIGRATION

After heated debates and public demonstrations for and against the proposed legislation, the Oklahoma Senate on April 16, and the House of Representatives on May 1, 2007, passed the Oklahoma Taxpayer and Citizen Protection Act of 2007 (the “Act”). The governor signed the Act into law on May 8, 2007, with an effective date of November 1, 2007.⁵ Although the Act was enacted as a single bill, House Bill 1804 of the 2007 Session of the Oklahoma Legislature, the Act amended existing statutes and added a variety of new ones.⁶

The purpose of the Act is stated in Section 2:

“The State of Oklahoma finds that illegal immigration is causing economic hardship and lawlessness in this state and illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. The State of Oklahoma further finds that when illegal immigrants have been harbored and sheltered in this state and encouraged to reside in this state through the issuance of identification cards that are issued without verifying immigration status, these practices impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Oklahoma. Therefore, the people of Oklahoma declare that it is a compelling public interest of this state to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The State of Oklahoma also finds that other measures are necessary to ensure the integrity of various governmental programs and services.

[a5] An idea of the scope and complexity of the Act can be drawn from the fact that its title, alone, contains 36 lines. Some of the provisions that particularly concerned the construction industry include these:

1. It is a felony punishable by not less than one year in prison or by a fine of not less that $1,000, or both, to transport, move or attempt to transport any alien any place within the state, including any building or means of transportation, knowing or in reckless disregard of the fact that the alien has entered or remained in the United States in violation of the law.

2. When a person charged with a felony or with driving under the influence of alcohol or drugs is confined in jail, a reasonable effort must be made to determine the person’s citizenship status. If the lawful immigration status of the prisoner cannot be verified, the U. S. Department of Homeland Security must be notified.

In determining whether a prisoner shall be granted pretrial release on bond, if it has been verified that the prisoner is a foreign national who has not entered the country lawfully, there shall be a rebuttable presumption that the prisoner is a flight risk.

3. A “Status Verification System” that is approved for use to comply with the requirements of the Act includes various electronic systems established by federal agencies, such as the Social Security Verification Service, or an independent, third-party system with an equal or higher degree of reliability as the approved governmental systems.

After July 1, 2008, no party shall enter into a contract or subcontract for the physical performance of services with a public agency in the state, unless the party has registered and participates in a Status Verification System to verify information on all new employees.

4. It shall be a discriminatory practice for an employer to discharge an employee working in Oklahoma who is a United States citizen or permanent resident alien while retaining an employee who the employer knows or reasonably should have known is an unauthorized alien hired after July 1, 2008, and who is working in a job category that requires equal skill, effort and responsibility as the job category of the employee who has been discharged.

An employer who was on the date of the discharge in question enrolled in and used a Status Verification System to verify the employment eligibility of its employees in Oklahoma shall be exempt from liability, investigation or lawsuit arising from such discharge.

No cause of action for violation of this section shall arise under any other law.

5. If an independent contractor for the performance of physical services in the state fails to provide to the contracting entity [not limited to governmental entities] documentation to verify the contractor’s employment authorization under the federal law relating to the employment of unauthorized employment of illegal aliens, the contracting entity shall be required to withhold state income tax at the top marginal tax rate on all compensation paid to the individual which exceeds the minimum amount required to be reported as income to the Internal Revenue Service.

Any employing entity that fails to comply with the withholding requirement shall be liable for the taxes required to be withheld, unless the entity is exempt from withholding from the individual.

[a6] Even though its implementation was delayed by litigation, as discussed below, the Act’s unintended effects quickly became evident. The response was due, in part, to misinformation about the contents of the Act that created exaggerated fears among both lawful and unlawful Hispanic residents. An example that was given wide publicity involved the illegal immigrant parents of a two-month old U. S.-born infant. He had suffered from diarrhea for ten days, but the parents were afraid that they would be deported if they took the infant to a hospital for treatment. The infant died from a ruptured intestine that could easily have been treated had the family not delayed treatment. The parents “went underground”, and reportedly returned to Mexico or went to Arkansas to live with relatives.

Illegal immigrants developed elaborate emergency plans in case their children should come home and be unable to find their parents.[a7] One woman having legal status was designated as the person whom her nieces and nephews should call if their mother was deported. The woman said that she also worried whether her husband, an illegal alien, would return home each weekend from construction jobs that he worked on across the state.

A homebuilder reported that the foreman of his framing crew had 70 employees, but lost 35 of them within a few months after adoption of the Act. He said his painter lost 30 percent of his workforce, and his landscaper lost 25 percent of his crew.⁷

Que Buena, a Hispanic radio station in Tulsa, stated that it had fewer and fewer advertisers, because of declines in their volumes of customers and sales. Antonio Perez, the owner of Las Americas, Tulsa’s largest Hispanic grocery store chain, estimated that he had lost 20 percent of his business. He cancelled his plans to open four more stores, and was concerned that the effect on his business would only worsen after the Act became effective.⁸

A large utility and excavation contractor reported that it was already experiencing labor shortages. An executive stated that the company previously had an average of ten Hispanic applicants each week, but now only one or two were applying. He said that the Act was having a wider effect than had been intended, as evidenced by the exodus of legal Hispanic workers from the state. He said that his company had always checked the legal status of all applicants, and had an excellent performance history from Hispanic employees. He was concerned about being able to fill the company’s needs if the exodus continued.

The executive vice president of the Associated General Contractors of Oklahoma Builders Division said that the public estimate of the proportion of illegal Hispanic workers in the construction workforce in the state were inflated, but if the Act were to be strictly enforced, the effect on construction would be extremely detrimental.⁹

The owner of Steak & Eggs and La Fiesta Mexican Grill, a dual-concept restaurant, said that he lost all of his employees, due to the Act. He and his partners took over daily staff responsibilities, and feared forced closure of the Mexican half of the business. Two Mexican restaurants reported that they had lost customers, as well as staff, because of the preAct exodus. An operator said that Hispanics were going to neighboring states, and were not returning to Mexico. Another Mexican restaurant with a primarily Hispanic patronage, said that many of the cards that it mailed out as part of the restaurant’s birthday club were being returned, because the addressees had moved without leaving forwarding addresses.¹⁰

The pastor of St. Francis Xavier Catholic Church, Tulsa’s largest Hispanic congregation, said that by August, 2007, two months after the Act passed, ten percent of the member families had left the church, and by the end of October, it had lost twenty percent of its families. [a8] Many had moved to other states, and some had returned to Mexico or other home countries. Most had left out of fear that their families would be separated. The pastor, himself an immigrant, said, “They feel persecuted, not understood and not welcomed. They feel their labor here has not been valued. There’s a lot of pain in my soul. I see how people are suffering. All I can do is bring them comfort though my ministry.”¹¹

LITIGATION TO ANNUL OKLAHOMA’S LEGISLATION

It is commonly said that politics and prisons make strange bedfellows. Immigration may now be added to the list. After passage of the Act and before its effective date, litigation to prevent its enforcement was commenced by plaintiffs as diverse as ministers, prisoners, chambers of commerce, private citizens and trade associations. Three different groups of plaintiffs instituted four of the lawsuits that became the primary forces opposing the Act. Each suit alleged a different basis for its assault. Only one of the cases is still surviving.

The first of the cases was filed in the United States District Court for the Northern District of Oklahoma by Conlamic-USA, the National Coalition of Latino Clergy, three churches, a chain of Mexican restaurants and several John Does against the governor and attorney general of the state.¹²

The case was filed on October 12, 2007, although the Act was not to become effective until November 1, 2007. The plaintiffs alleged that the Act violates the United States Constitution, the Oklahoma Constitution and federal law. They sought declaratory and injunctive relief. The court raised the issue of standing sua sponte, and found that issue to be dispositive of the case.¹³

The court held that standing to maintain a case in the federal court requires that the plaintiff must have suffered an “injury in fact”, which is actual or imminent, and not conjectural or hypothetical.¹⁴ The court found that some of the plaintiffs had alleged no injury, while others alleged injuries, but failed to relate the injuries to any provision of the Act. It further found that there was no imminent threat of injury, since the Act had not yet taken effect. The court ruled that none of the plaintiffs had standing to prosecute the action and dismissed it. The plaintiffs did not appeal.¹⁵

Some of the plaintiffs in that case were undaunted by its dismissal and tried again. In the second case, the Conlamic-USA and the three churches were joined by Conlamic-Oklahoma, a construction company, a different restaurant and numerous John Does. Again they sued Oklahoma’s governor and attorney general in the United States District Court for the Northern District of Oklahoma.¹⁶

The case challenged the constitutionality of the Act and five other state statutes relating to the issuance and renewal of driver licenses. The court said, “Plaintiffs’ complaint is breathtakingly broad. By the Court’s count, the seventy-six page complaint attempts to challenge sixteen separate statutes, under twenty-one different state and federal constitutional provisions and statutes, and on behalf of eighteen different plaintiffs.”¹⁷

The court denied the plaintiffs’ application for a temporary injunction, whereupon the plaintiffs amended their complaint, and the case proceeded on the defendants’ motion to dismiss the amended complaint, which was the subject of the judge’s graphic description.¹⁸ The court again began with an analysis of whether the plaintiffs had standing to maintain the action, first considering the “injury” requirement of standing.¹⁹

The court held that Conlamic-USA, Conlamic-Oklahoma, the churches, the construction company and the restaurant chain failed to allege an injury that allowed them to proceed with the action. They were dismissed. It also held that the seven John Does met the injury test with respect to their challenges to certain Oklahoma statutes.²⁰

Next the court considered whether prudential limitations on standing would, nevertheless, bar the Does from prosecuting their claims. It held, in part:

This Court is convinced that the proper remedy for the injuries alleged by the remaining Plaintiffs – all of whom are in willing violation of federal immigration law – is not judicial intervention, rather, it is simple compliance with federal immigration law. Therefore, the Court must prudentially decline to recognize standing on the part of these plaintiffs. In reaching this conclusion, the Court recognizes that illegal aliens have been deemed to be clothed with the protections of certain Constitutional rights. See Plyler v. Doe, 457 U.S.202, 102 S. Ct. 2382, 72 L.Ed.2d 786 (1982) (extending protections of Fourteenth Amendment’s Equal Protection Clause to illegal alien children). The Court’s focus, however, is not on the illegal alien Plaintiffs’ claims – nor the rights underlying those claims – it is on the Plaintiffs themselves.²¹

The court held that the Does’ admitted continuing violation of the federal immigration laws amounted to unclean hands, which warranted the denial of the relief they requested.²² The court distinguished the case of an illegal immigrant who was innocently injured in a car wreck, and sued the guilty driver to recover for his injuries.²³ In that instance, the plaintiff’s illegal presence in the country was unrelated to his cause of action for negligence.

To illustrate the point further, the judge included this footnote:

While the situation here is vastly more benign, the Court can envision a scenario where a foreign member and supporter of a known terrorist organization could enter the country illegally, make their way to Oklahoma, anonymously – to avoid arrest by federal authorities – file a lawsuit challenging the constitutionality of Okla. Stat. tit. 21, §1268, et seq. (the “Oklahoma Antiterrorism Act”), admit in their lawsuit that they are in violation of multiple federal anti-terrorism statutes, and expect this Court to entertain their challenge to the state anti-terrorism law designed to bolster the federal law. Surely, this Court would not be required to allow that anonymous Plaintiff to bring suit.²⁴

The court held that none of the plaintiffs, including the Does, had standing to maintain the action, and granted the defendants’ motion to dismiss.²⁵

The third case involves two plaintiffs, who were remanded to the county sheriff pending immigration proceedings following their convictions, in separate proceedings, on pleas of guilty to two counts of second degree rape and possession of cocaine, domestic assault and battery and assault and battery, following imposition and suspension of sentences on probation.²⁶ The immigration detainers expired without action having been taken by the Federal Bureau of Immigration and Customs Enforcement, but the trial judge, citing the Act as authority, ordered that the plaintiffs continue to be held in jail.²⁷

The plaintiffs filed for writs of habeas corpus and prohibition in the Oklahoma Court of Criminal Appeals to compel their release. There were numerous challenges to the Act on constitutional grounds, but the court found it unnecessary to consider them. The court held that nothing in the Act authorizes a court to order an individual confined because he is an illegal immigrant. The provisions in the Act directing agencies of the state to assist and cooperate with federal officials in the enforcement of the immigration laws are not the same as authorization to order confinement.²⁸

The sheriff’s obligation under the Act to assist and cooperate with federal enforcement authorities was satisfied when the state notified the appropriate federal agency, and the agency failed to follow through and take custody of the plaintiffs prior to the expiration of the federal detainer orders. Such behavior does not authorize further detention. The plaintiffs’ sentences had been suspended, and they were entitled to be released. The Court of Criminal Appeals issued writs of habeas corpus directing that the plaintiffs be released. The burden then shifted to federal officials to cause the arrest of the plaintiffs on charges of unlawful entry into the United States.²⁹

The fourth case was brought in state court, the District Court of Tulsa County, and claimed that the Act violated the Oklahoma Constitution in several particulars. Only one was upheld, and it involved a technical, rather than a substantive provision.

The plaintiff was a taxpayer and the son of a University of Tulsa law professor. The defendants were the governor and the attorney general of Oklahoma. The successful challenge was based upon Article 5, section 57, of the Oklahoma Constitution, which provides, “Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title …” The court noted that the purposes of the Act are expressed clearly, and may be summarized as being to discourage illegal immigration.³⁰

The court held that all provisions are germane, relative and cognate to that purpose, with the exception of the section which denies resident tuition in state colleges and universities to illegal aliens. That section, said the court, is altogether unrelated to the common theme of discouraging illegal immigration. The court declared that severable section of the Act unconstitutional.³¹

The most interesting challenge in the case was the allegation that the Act violated the prohibition of Article 5, section 48, of the Oklahoma Constitution, which states, “The Legislature shall have no power to appropriate any of the public money for the establishment and maintenance of a Bureau of Immigration in this State.” The judge made an interesting historical review to determine what was intended when the Constitution was adopted in 1907. He found that at that time, some of the other states maintained agencies called “bureaus of immigration” whose purpose was to encourage people to immigrate to the respective states, in order to encourage settlement and growth. The court found that the drafters of the Oklahoma Constitution had no intention to forbid the creation of an agency to enforce the laws against illegal entry into the United States.³² Summary judgment was granted to the defendants on all issues, except for the provision regarding tuition for higher education.

The fifth case, and the only one not yet resolved is now pending in the United States Court of Appeals for the Tenth Circuit.³³ The temporary injunction issued by the district court and the pendency of the appeal have delayed any enforcement or implementation of the Act.³⁴ Oral arguments have been heard in the appellate court, and supplemental briefs requested by the court have been filed. A decision is likely to be issued soon.

The case arose in the United States District Court for the Western District of Oklahoma, on a complaint filed on February 1, 2008, by the national, state and two city chambers of commerce, the state restaurant association and the state hotel and lodging association against the state governor, the attorney general, the nine members of the Oklahoma Human Rights Commission and the three members of the Oklahoma Tax Commission.

The action seeks declaratory and injunctive relief to prevent implementation of Sections 7 and 9 of the Act, on the ground that they are preempted by federal law and are unconstitutional under the Supremacy Clause of the United States Constitution.³⁵

Section 9 of the Act requires all businesses in Oklahoma to verify the work authorization status of each independent contractor with whom they contract for the performance of physical services in the state. If an independent contractor does not provide proper verification, the contracting business must withhold, at the highest state marginal tax rate, taxes from the independent contractor’s payments, or be liable to the state for the required taxes. Section 7(B) of the Act forbids all agencies and political subdivisions of the state from entering into any contract for the physical performance of services within Oklahoma, unless the private contractor participates in the state’s Status Verification System to verify the work eligibility status of all new employees.

Section 7(C) allows the Oklahoma Human Rights Commission to investigate and bring civil actions for damages against any employer that (i) discharges a legal employee, and (ii) knows or reasonably should have known that it was employing an unauthorized worker in the same job classification as the discharged employee. An employer will not be liable under this section if it uses the Status Verification System.

The plaintiffs contend that the challenged sections of the Act cannot be enforced as they improperly conflict with federal law and are, thus, preempted. They argue that they are entitled to injunctive relief barring the enforcement of the sections, because they will be irreparably harmed by the Act’s enforcement. The defendants respond that the sections in question do not conflict with federal law, and that the plaintiffs’ action is barred by federal statutes. The district court found that the plaintiffs had standing to prosecute the action and proceeded to consider the defendants’ motions to dismiss and the plaintiffs’ application for a temporary injunction.³⁶

The defendants argued that the challenge to Section 9 of the Act, which includes a requirement of income tax withholding on amounts paid to contractors who do not comply with the Act’s employment eligibility verification provisions for all of their employees, is barred by the Tax Injunction Act (28 U.S.C. §1341). It states: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”³⁷

The district court, in following decisions of the Tenth, Fourth and First Circuit Courts of Appeal, found that the Tax Injunction Act was not applicable, because the primary purpose of Section 9 was not to raise revenue, but, rather, was to regulate and control behavior.³⁸

Defendants also argued that plaintiffs’ claims could not be pursued in federal court, because of questions of sovereign immunity of the state and the restrictions imposed by the Eleventh Amendment to the United States Constitution. The court recognized that the plaintiffs could maintain their action only if their claims were within the doctrine announced in Ex Parte Young.³¹ “[W]hen an official of a state agency is sued in his official capacity for prospective equitable relief, he is generally not regarded as ‘the state’ for purposes of the Eleventh Amendment and the case may proceed in federal court.”⁴⁰

In its recent decision in Hill v. Kemp⁴¹, the Tenth Circuit Court of Appeals quoted the rationale of the U.S. Supreme Court in Verizon Md., Inc. v. Public Service Comm. of Md.⁴² complete the parallel citation): “ In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straitforward inquiry into whether [the] complaint seeks relief properly characterized as prospective.’”⁴³ In simplifying the test, the Tenth Circuit Court said that the question to be asked was whether the lawsuit would impose upon the state a monetary loss for a past breach of a legal duty. If it does not, the suit seeks only prospective relief, and the Eleventh Amendment is no bar.

In applying that test, the district court ruled that neither sovereign immunity nor the Eleventh Amendment prevented the plaintiffs from prosecuting their claims.⁴⁴

The basis of the defendants’ assertion that the sections of the Act under examination were not preempted by federal law was the contention that 8 U.S.C., §1324a(h)(2) infringed upon the lawmaking autonomy of the State of Oklahoma without proper constitutional authority. That section, which is part of the Immigration Control and Reform Act of 1986, states: “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”⁴⁵

The district court reviewed a long line of U.S. Supreme Court decisions establishing without question the power of congress to regulate matters relating to immigration. It held that since Congress had the constitutional authority to entirely preempt state authority in immigration matters, it clearly had the authority to adopt the challenged section, 8 U.S.C. §1324a(h)(2). The motions to dismiss were denied.⁴⁶

The district court’s consideration of the plaintiffs’ application for a temporary injunction to prevent implementation and enforcement of the challenged sections of the Act was based upon its rationale for denying the motions to dismiss. Primarily, the court’s conclusion that the action was not barred by the Tax Injunction Act and that federal law preempted the sections in question made it likely that the plaintiffs’ would prevail upon the merits of their application.

The district court also found that the plaintiffs would suffer irreparable harm, if portions of the Act involved in the case were permitted to become effective and to be enforced prior to a determination whether or not they were preempted by federal law. Further, the court said that plaintiffs would face the choice of complying with either the state or the federal law, but not both.⁴⁷ For example, the Act mandates use of the Status Verification Systems to verify employment eligibility, while federal law prohibits use of the systems for that purpose. Further, the Act restricts the documents adequate to verify a potential employee’s employment eligibility status, but the restriction is contrary to federal law instructions to use the existing Form I-9 for that purpose.

If the plaintiffs are forced to comply with an Act which may ultimately be preempted, Plaintiffs will not have a method to seek compensation for their costs of compliance. The district court held:

The Court further finds that the potential harm to the Plaintiffs outweighs any harm to defendants caused by the brief delay until the matter can be finally resolved. There is little doubt that the issues H.B. 1804 seeks to address have existed for a long time. Further, it is clear that issues of illegal immigration are a pressing issue for both the State and Federal government. Any delay in determining their validity will have a de minimus impact on Defendants’ interests and a final resolution to the issue will play a significant role in defining which government is responsible and authorized to address the immigration issue.

Finally, while the public clearly has an interest in issues of illegal immigration, and no court should treat the prospect of overturning state law without grave consideration, the Constitution requires that the will of the States must occasionally give way to the need for uniformity among the States, and that uniformity can only be accomplished through congressional action. Thus, for now, the provision of H.B. 1804 challenged by Plaintiffs must be enjoined until a final determination can be made about the extent to which States can permissibly regulate without interfering with areas reserved exclusively for congressional action.⁴⁸

The order imposing a temporary injunction barring implementation and enforcement of the challenged sections has delayed enforcement of the entire Act. Even after plaintiffs perfected the appeal, the injunction continues to remain in effect. During oral argument on May 4, 2009, questions by the circuit court judges raised the issue of redressability; that is whether granting the relief sought would remedy the injury complained of by the plaintiffs. The issue relates particularity to the attorney general, who does not have the authority or responsibility for enforcement of the provisions of the Act.

The court directed that counsel for the parties submit supplemental briefs on the issue of redressability, and they have done so. Given that the defendants concede that the attorney general has the authority to review contracts to be entered into by state agencies, and could, therefore, require that compliance with the Act be specified in an agency contract, the primary question in these briefs becomes whether enjoining the attorney general would afford sufficient redress to the plaintiffs to give them standing to prosecute the action under Article III of the U.S. Constitution.

The appeal is awaiting the decision of the court.

CONCLUSION

Since the enactment of the Act and the litigation testing its viability, the Oklahoma legislature has taken little action that could be characterized as affecting immigration or immigrants. It passed House Joint Resolution 1042, which states that English is Oklahoma’s common and unifying language. It refers to the electorate the decision as to whether the resolution should be made law by a referendum vote in November, 2010.⁴⁹

If approved by the voters, the new law would require that all state business be conducted in the English language. It would also bar suits against the state to compel that services be provided in any language other than English. It would also allow individuals and private businesses to use whatever language they choose. The law would also protect the “use, study, development or encouragement” of any American Indian language, including the languages used by Oklahoma’s thirty federally-recognized tribes.

After the initial reaction to the Act and the fear of its consequences were dampened by the injunction against the effectiveness of its major employment provisions, the departure of Hispanics from Oklahoma has slowed [a9] markedly. The economic recession has affected Oklahoma less than many other parts of the country, but [a10] it has, at least, focused attention elsewhere. Oklahoma did not experience a “housing bubble’, and has not experienced a collapse in residential real estate prices. And although, home sales and construction have declined, that has been more the result of restrictive mortgage availability and personal concerns about financial security and employment. In June, 2009, Oklahoma’s overall unemployment rate had risen only to 6.5%, much lower than the national rate. Due to Oklahoma’s success, it has experienced increased migration from other states. It is, however, noted that Oklahoma does not presently report numbers relating to increased illegal immigration.

Commercial construction has not yet experienced a significant decline, because of the volume of work remaining to be completed, but single-family residential construction has dropped. Much of the labor involved in home building is Hispanic, and layoffs have been heavy for workers in that segment of the construction industry in both Oklahoma and elsewhere. It is expected that most contractors involved in building new homes hope to shift to home remodeling and repair. The reality of this hope is that it cannot utilize the supply of available manpower. As a result, unemployment among Hispanics will increase, and immigration, legal and illegal, will decline.

While there are no census data available for the past two years, information from the public schools shows that the state’s Hispanic population is continuing to increase. The number of Hispanic students statewide during the 2008-2009 school year increased by 3,461 students over the 2007-08 school years. Statewide, Hispanic students account for 67,652 of 644,777 students. Because of the increase in Hispanic students, the state is providing professional development for teachers who have significant numbers of students for whom English is a second language. Schools are also seeking to employ more bilingual teachers.⁵⁰

In Oklahoma’s higher education institutions, only 0.11% of the students are illegal immigrants. Over the last five years, the number of college students who are illegal immigrants has only increased from 215 to 272. If the restrictions on financial aid contained in the Act become effective, more students will be relying upon privately-funded scholarships and other sources of private funding.⁵¹

The outcome of the judicial attacks will determine the status of anti-illegal immigration legislation in Oklahoma, and will probably foreshadow what efforts other states will make to restrict illegal immigration across their borders. The future of the economy will most likely be the controlling factor.

[1] Electronic Library of Construction Occupational Safety and Health,

The Construction Chart Book, 4th Ed., Section 15 (Dec. 2007), available at http://www.elcosh.org/en/document/54/1317/d000038/sect15.html.

2 The Construction Chart Book, 4th Ed., supra note 1, at Section 15.

3 The Construction Chart Book, 4th Ed., supra note 1, at Section 15.

4 Andrea Eger & Nora Froeschle, Schools see no drain of kids, Tulsa World, Oct. 30, 2007, at A1.

5 2007 Okla. Sess. Laws 112 (commonly referred to as HB 1804).

6 The following statutes were amended by HB 1804: Okla. STAT. tit. 21, § 1550.42 (2001) and Okla. STAT. tit. 70, § 3242 (2006) (also cited as Section 1, Chapter 210, O.S.L. 2003).

7 Associated Press, Oklahoma law blamed for Hispanic exodus (Jan 25, 2008), available at http://www.msnbc.msn.com/id/22845808/.

8 KOTV, Channel Six, Tulsa, Immigration Reform Already Affecting Hispanic Businesses (August 27, 2007), available at http://www.kotv.com/news/topstory/?id=134852.

9 Althea Peterson, Worker impact seen, Tulsa World, Oct. 31, 2007, at A1.

10 Paul Thackett, Bill leaving BA restaurants in bind, Tulsa World, Oct. 24, 2007, at Community World, p. 1.

11 Bill Sherman, HB 1804 affects ministries, Tulsa World, Nov. 1, 2007, at A10.

12 Nat’l Coalition of Latino Clergy v. Henry, 2007 WL 3113427 (N.D. Okla.).

13 Id. at *1.

14 Id.

15 Id. at *1-*6.

16 Nat’l Coalition of Latino Clergy v. Henry, 2007 WL 4390650 (N.D. Okla.).

17 Id. at *3.

18 Id.

19 Id.

20 Nat’l Coalition of Latino Clergy v. Henry, 2007 WL 4390650, at *7.

21 Id. at *8.

22 Id. at *9.

23 Id. at n.6.

24 Nat’l Coalition of Latino Clergy v. Henry, 2007 WL 4390650, at n.7.

25 Id. at *10.

26 Ochoa and Robles v. Bass, 2008 OK CR 11, 181 P.3d 727.

27 Id. at ¶ 5, 729.

28 Id. at ¶ 9, 730.

29 Id. at ¶¶ 20-21, 733.

30 Judgment of the Court Finding of Fact and Conclusions of Law, p. 6, Thomas v. Henry, CJ-2008-46 (Tulsa County, Feb. 11. 2009) (since the decision is unpublished, a copy is attached).

31 Id.

32 Id. at pps. 5-8.

33 Chamber of Commerce of the U.S. v. Edmondson, 08-6127 (W.D. Okla. 2008).

34 Chamber of Commerce of the U.S. v. Edmondson, 2008 WL 2329164 (W.D. Okla. June 4, 2008).

35 Complaint for Declaratory and Injunctive Relief, Chamber of Commerce of the U.S. v. Edmondson, 08-6127 (W.D. Okla. Feb. 1, 2008).

36 Chamber of Commerce of the U.S. v. Edmondson, 2008 WL at *4.

37 Id. at *3.

38 Id.

39 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

40 Id. at n.4 (quoting ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188 (10th Cir. 1998), which is citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)).

41 478 F.3d 1236(10^th Cir. 2007), cert. denied, ___ U.S. ____, 128 S. Ct. 873, cert. denied, ___ U.S. ___, 128 S. Ct. 884 (2008)).

42 535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).

43 Hill, 478 F.3d at 1259.

44 Chamber of Commerce of the U.S. v. Edmondson, 2008 WL at *5.

45 Id.

46 Id. at *6.

47 Id. at *8.

48 Id.

49 Michael McNutt, English-only bill to go on ballot, Tulsa World, Nov. 1, 2007, at A1.

50 Dawn Marks, Oklahoma schools add 3,400 Hispanic students, The Daily Oklahoman, Jan. 28, 2009, available at http://newsok.com/oklahoma-schools-add-3400-hispanic-students/article/3341296.

51 Julie Bisbee, Report: Few illegal residents in college, Tulsa World, June 13, 2009, at A8.

S:\WPDOC\7109\000\Forum Committee_final.DOC

9/21/2009 rh