Testimony: Suffolk County Bill Requiring Companies To Certify Compliance With Federal Law With Respect To Hiring Of Employees

My name is Udi Ofer. I am Legislative Counsel at the New York Civil Liberties Union (“NYCLU”). Since 1951, the NYCLU has been the state’s leading advocate on behalf of New Yorkers’ civil rights and civil liberties. We are a non-partisan organization with six chapters, including one in Suffolk County, and 48,000 members statewide.

I testify today in strong opposition to Introductory Resolution No. 2025, currently before the Suffolk County Legislature, which would increase, and in many cases conflict with, existing Federal requirements that employers verify the work eligibility of their employees. Contrary to the bill’s title, the proposed legislation would not only “certify compliance with federal law,” but would go much further and attempt to change and even conflict with Federal law that already prohibits and sanctions employers who hire undocumented immigrants.

The proposed Suffolk County legislation is riddled with constitutional flaws and anti-immigrant sentiments, and blatantly ignores the supremacy of Federal law in the area of immigration regulation. Federal law clearly preempts the proposed Suffolk County legislation, which attempts to legislate in an area already regulated by Federal law and the Immigration and Nationality Act (“INA”). Moreover, if passed, the proposal would lead to discrimination against anyone who looks or sounds “foreign,” regardless of their actual citizenship status. Employers will fear retribution for hiring undocumented workers and discriminate against United States citizens and other individuals with the right to work in Suffolk County, in violation of Federal civil rights protections.

Introductory Resolution 2025 comes amid a passionate national debate over several proposals currently before Congress to reform the Federal immigration law system. In three days, members of the House Judiciary Committee will meet in Upstate New York to discuss immigration law reforms. Suffolk County residents should participate in this national debate by engaging in public expression of their opinion and by lobbying their elected officials in Congress.

However, the Suffolk County Legislature should not, and cannot, attempt to enter this debate by passing legislation that is clearly beyond its constitutional mandate. It is not the place of local government to assume the responsibilities of the Federal government. Suffolk County should not become the untrained and unfunded enforcement arm of the Federal immigration system. Doing so will lead to a chaotic legal system where employer penalties will vary from community to community. The interest in uniformity and fairness of application is precisely why the courts have long held that immigration law is under the exclusive province of the Federal government.

Immigration regulation is an exclusive Federal power

The United States Constitution grants the Federal government the exclusive power to “establish a uniform rule of Naturalization,” U.S. Const. art. I, §8, cl. 4. The Supreme Court has long held that the “power to regulate immigration is unquestionably exclusively a federal power.”

Pursuant to this exclusive power, the Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine whether and under what conditions individuals may enter, stay in, or work in the United States. Federal immigration laws include provisions directed at individuals who employ non-citizens. These laws and regulations include documentation requirements and anti-discrimination provisions applicable to employers, as well as criminal and civil sanctions against employers who fail to comply with the Federal scheme. Federal law also protects employers and employees by providing for good faith defenses with respect to employment documentation requirements, and includes privacy protections for retention of records.

The comprehensive Federal regime over immigration law continues to evolve and represents a careful balance between the nation’s interest to regulate immigration and respect for individual rights and freedoms.

The proposed Suffolk legislation is incompatible with and preempted by Federal immigration law

In certain circumstances Federal law may preempt state or local laws under the Supremacy Clause. Article IV, Section 2, of the United States Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance therefore; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.

The Supreme Court has articulated three tests to be used to determine when Federal law may preempt local statutes. If the local statute fails any one of the following three tests, it is preempted: (1) Congress intended to occupy that particular field; (2) Congress includes in its legislation an express statement of preemption; or (3) local law conflicts with Federal law, making it impossible to comply with both.

The proposed Suffolk County legislation fails the above tests laid out by the Supreme Court.

First, as stated above, it is well settled that the Federal government has the exclusive authority to regulate immigration. Indeed, the Immigration and Nationality Act already prohibits the hiring and continued employment of undocumented immigrants, and has established penalties against employers who knowingly hire undocumented immigrants, including a regime for employers to verify employee eligibility. Violators of the Federal legislation are subject to civil and criminal penalties.

Second, Congress included in the INA a clause expressly preempting local and state law from placing additional civil fines or criminal sanctions on employers who violate Federal law and hire undocumented immigrants, and the few very narrow exceptions to the preemption clause do not come close to including the proposals set forth in the Suffolk County proposal. Rather, the proposed Suffolk County legislation directly contravenes the preemption clause in the Federal legislation by imposing additional civil fines and criminal penalties, among other things.

Third, many of the other provisions in the proposed County legislation conflict directly with existing federal laws and regulations. The proposed Suffolk County legislation creates categories of documents to prove employment authorization and an individual’s identity that are in conflict with Federal law. For example, military personnel who under Federal law may use a United States Military Card to establish their identity cannot do so under the Suffolk County legislation. Native Americans will not be informed of their authority to use tribal documents in order to establish employment eligibility. In other areas the Suffolk County legislation actually decreases the amount of documents needed to verify employment eligibility, all in violation of established Federal law.

Moreover, the proposed Suffolk County legislation conflicts with Federal law by failing to protect employers in circumstances where they acted reasonably; conflicts directly with Federal rules on employment eligibility re-verification; and conflicts with Federal requirements surrounding record retention. The proposed Suffolk County legislation would even put employers in jeopardy of violating Federal immigration employment laws by asking them to engaging in possible document abuse. Finally, the Suffolk County proposal does not include the same privacy and due process protections afforded under Federal law, and central to the employment verification scheme.

Raising serious concerns under Federal civil rights statutes

Title VII of the Civil Rights Act prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. Moreover, under 42 U.S.C. §1981 and the Civil Rights Act of 1870:

“All persons within the jurisdiction of the United State shall have the same right in every State and Territory to make and enforce contracts, to use, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, option, penalties, taxes, licenses, and exactions of every kind, and to no other.”

The Supreme Court has held that Section 1981 prohibits government discrimination based on citizenship status, and the Second Circuit has extended that protection against private actors as well.

Numerous organizations and individuals have already testified that should the proposed Suffolk County legislation pass, there will no doubt be a rise in discrimination against individuals who appear to be from certain countries, regardless of their citizenship status. Employers will become very reluctant to hire individuals from certain ethnic backgrounds, in fear of violation of this legislation. Such acts will be in direct contravention of Title VII and Section 1981. Suffolk County is placing local employers in a position where they will undoubtedly be subject to numerous civil rights lawsuits.

For the reasons stated above, the New York Civil Liberties strongly opposes Introductory Resolution 2025 and asks County legislators to vote against it.