How Clinton Could “Save” Companies from the Death Penalty in Immigration

For employers, the main immigration law is IRCA—the Immigration Reform and Control Act. It requires, for example, that employers verify the eligibility of prospective employees to work. IRCA has a “savings” clause. It means that federal immigration law doesn’t apply to matters ordinarily reserved to states, such as “licensing.”   

Immigration hardliners have spent the past decade exploiting the licensing exception to federal immigration law. Take Arizona, which requires employers to use the federal E-Verify system—and if not, the company, upon its second violation, will be barred from doing business in that state, permanently.

Let’s think about how that might work. Let’s say at one McDonald’s location, a manager fails to use E-Verify and hires an unauthorized worker. McDonalds is subject to state-imposed penalties and must make quarterly reports to Arizona. Let’s say a second violation occurs at another McDonalds owned store.

McDonalds would get the death penalty from Arizona. Remember, to run a restaurant, the business needs approval from a state or local entity. Such is the silent power in exploiting IRCA's licensing exception.

These aren’t my words—they’re used in the court rulings. You might think that a Latino group or labor group sued to overturn the law. 

No. The complainant was the U.S. Chamber of Commerce! This business group argued that the penalty provisions of the law were far too harsh given the nature of the offense—and this penalty scheme could cause large employers to avoid siting work in Arizona.

The Supreme Court, in U.S. Chamber of Commerce v. Whiting, upheld the law as a valid exercise of state power under IRCA.

Why talk about this now? A Clinton victory and Democratic control of the Congress seem possible.

The current election cycle has unleashed powerful anti-immigrant voices. In “red” states, one could foresee more state legislation that ambitiously exploits the federal immigration law to undermine federal policy.

Remove the licensing law, and these anti-immigrant laws fall apart. It’s a straight-forward way to reform immigration law without getting into the tangled politics of comprehensively reforming our very messy and controversial immigration laws.