Does County Commission Really Have the Authority to Crack Down on Illegal Aliens?

On one of his last forays before being voted out of office, former County Commissioner Paul Pinkston aimed a punitive county ordinance at employers who hire illegal aliens.

For a first offense, any employer who knowingly hires an illegal alien would have its Knox County business license suspended for 30 days. For a second offense, there would be a one-year suspension and a $1,000 fine, and a third offense would result in permanent revocation of the employer's license to do business in Knox County.

Since cracking down on illegal aliens has proven to be a very popular political sport throughout the land these days, Commission was quick to unanimously approve Pinkston's strike against them at its July meeting. This shoot first and ask questions later mentality almost prevailed again when the ordinance came up for a required second reading at Commission's August meeting. But a last-minute appeal by a lawyer representing undisclosed employers for more time to work out enforcement procedures, which the ordinance totally lacks, led to a one-month postponement of final action.

But it doesn't take a month to ascertain what should have been clear from the beginning: Namely, that County Commission has no occasion and probably no authority to start imposing immigration sanctions.

Incredibly, no mention was made at either the July or August meetings of a 2008 state law that already imposes penalties for hiring illegal aliens and requires localities to refer apparent violations to the state for investigation and enforcement under state procedures that afford due process. Since the Knox County ordinance was presumably drafted by its Law Department, with much of the verbiage lifted verbatim from the state law, it is incumbent on Law Director Joe Jarret to explain to commissioners why he failed to make them aware of it.

Jarret may have some basis for believing that local forays into the complex field of immigration law compliance aren't preempted by the state's, but he's got a lot of explaining to do on this account as well.

It's true that the vindictive Pinkston's ordinance seeks to turn the screws tighter than the state Legislature saw fit to do—both in terms of the penalties for employer violations and the burdens it puts on them.

Under the state law, the penalty for a first violation is a suspension of an employer's business license until the person files "a sworn statement with the Commissioner stating that the person is no longer employing illegal aliens." In the two cases in which the state Commissioner of Labor has meted out penalties after conducting hearings pursuant to the Uniform Administrative Procedures Act, the employer found in violation has submitted the prescribed statement before the suspension took effect.

For a second subsequent violation occurring within three years after the first one, a one-year suspension of the employer's business license is prescribed. But there are no fines or other penalties involved because state officials were well aware (as whoever drafted Pinkston's ordinance apparently was not) that federal immigration law precludes enforcement actions on the part of states or localities except where business licenses are concerned.

The state law also adheres to federal law in terms of the verification of a prospective employee's status that is required. This consists of obtaining documentation from an alien—be it a more permanent green card, temporary work permit, or Social Security card evidencing the alien's entitlement to work in this country. This documentation must be retained on what's known as an I-9 form, and employers may rely on it even if it's falsified.

The Pinkston ordinance goes further by way of requiring employers to verify the validity of documentation furnished by a worker through use of what is known as an E-Verify service provided by U.S. Citizenship and Immigration Services. Under federal law, use of E-Verify is voluntary except for federal contractors, but several states starting with Arizona have made it mandatory. The Arizona law in question is now the subject of an appeal before the U.S. Supreme Court, and the Obama administration has urged that it be struck down for exceeding state authority.

The Pinkston ordinance also goes beyond state law in subjecting employers to its sanctions not only when they hire but also if they "contract with or otherwise utilize the services of illegal aliens." Of the estimated 12 million undocumented aliens residing in this country (no one really knows the real number), many work in a shadow economy not as employees of licensed businesses, but under no-questions-asked contractual arrangements with their "handlers."

It's very troubling that ICE (the Immigration and Customs Enforcement arm of the federal Department of Homeland Security) has stated that it doesn't begin to have the resources to deal with illegal immigration issues en masse. Rather, ICE's stated priorities are to address national security and criminality concerns and not employment practices per se. So it's preposterous to think that a fiscally-strapped Knox County could undertake investigation and enforcement of what are essentially federal responsibilities, however overwhelmed the federal authorities may be.

Moreover, the general counsel of the state Department of Labor Dan Bailey is clear that state law directs localities to refer suspected employment violations to his department and that "local ordinances would be redundant."

So county commissioners, now fortunately sans Paul Pinkston to mislead them, should stop posturing and get off this silly kick.

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