Federal judge refuses to halt Legal Arizona Workers Act

‘Plaintiffs have no substantive due process right to employ unauthorized
aliens …’


By Linda Bentley


    PHOENIX – On Friday, U.S. District Court Judge Neil Wake denied motions
for an injunction to halt implementation of the Legal Arizona Workers Act.
The new law, which goes into effect Jan. 1, requires all Arizona employers
to participate in the federal EVerify program to screen employees for work
eligibility and can result in suspension or loss of business licenses for
those employers who knowingly employ illegal aliens.
    Plaintiffs in the two, now consolidated, actions include: Arizona
Contractors Association, Employers for Immigration Reform, U.S. Chamber of
Commerce, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce,
Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality
Association, Arizona Roofing Contractors Association, Wake Up Arizona!,
Arizona Landscape Contractors Association, Chicanos Por La Causa and Somos
America.
    On Dec. 7, Wake dismissed the complaints without prejudice “for lack of
a justiciable case or controversy” for plaintiffs’ failure to name the
correct defendants.
    Plaintiffs filed new actions on Dec. 10 and 12 adding county attorneys
as the proper defendants and, once again, sought interim injunctive relief
while also seeking an injunction pending appeal.
    Oral arguments for the temporary restraining order were heard on Dec.
18.
    The county attorney defendants stated although they would not
intentionally delay carrying out their duties, they would not be able to
bring any proceedings before February.
    Wake denied the plaintiffs’ motions for a temporary restraining order in
the second consolidated action, citing: there is an insufficient likelihood
plaintiffs will succeed on issues that demand remedies in the short term; it
may be improper to issue a temporary restraining order that is really a
declaratory judgment; the balance of hardships tips against plaintiffs
rather than for them; and there will be full opportunity at the January 16,
2008 preliminary injunction hearing to address issues that may occasion
interim relief thereafter.
    Wake elaborated by saying an injunction would deprive the Act’s
beneficiaries of its substantive protection for the extended period of an
appeal and causes other harms.
    He also stated the plaintiffs’ hardship is minimal and said they offered
“mostly sweeping generalities” adding, “The hardship comes down to nothing
more concrete than the expense of using E-Verify,” especially since counsel
admitted at trial none of the plaintiffs lacked a computer or Internet
access.
    Wake noted the only cost would be employee time in learning the program,
submitting names of new hires after Jan. 1 and assisting new employees with
resolving out-of-date government records, estimating the cost at no more
than a couple hundred to a few thousand dollars a year for the large
majority of employers.
    While cost meets the minimum for standing, Wake said no plaintiff showed
that the cost will be material in the context of its business operations.
    “Moreover, complying with EVerify … will have off-setting benefits for
plaintiffs,” said Wake, “An overwhelming majority will find it an effective
and reliable tool for employment verification … The one thing it will not do
is allow them to keep hiring nearly as many unknown unauthorized aliens, but
that is not a ‘hardship’ that could count under the law.” Wake also noted
the plaintiffs “wholly failed to acknowledge the harm to the interests of
the state, the interests of others and the public interest from an
injunction pending appeal or temporary restraining order,” as he expounded
on those harms beginning with the state’s expenditure to inform every
employer by Oct. 1 of the Act and the obligation to comply after Dec. 31,
would be wasted.
    He said the confusion that would arise among employers, “with the
prospect of serious prejudice to some … Of approximately 150,000 employers
in Arizona, the large majority have not yet enrolled in E-Verify. An
injunction could cause many to think they are excused from the Act and from
Everify compliance, perhaps permanently … If plaintiffs’ case fails in the
end, many employers could in good faith find themselves exposed to harsh
sanctions because they did not know when to comply. The risk of catastrophic
loss to other employers from a confusioncausing injunction outweighs the
minimal cost to plaintiffs from compliance.” Wake said people disagree
whether the great number and continuing flow of unauthorized workers into
the United States has more benefits than costs.
    However, he said, “No one can disagree that costs and benefits accrue
differently to different people in our society.” He stated, “The balance now
struck is in favor of an economy for those who may work in the United
States.” Accordingly, Wake said the benefits to those who come here
illegally to make better lives for themselves, to those who save from lower
cost labor and general depression of wages from employing unauthorized
aliens, and to those who enjoy the products of unauthorized labor at lower
prices, do not count.
    “The beneficiaries chosen identically by federal and Arizona law prevail
over all who benefit from unauthorized alien labor,” said Wake.
    Last, Wake pointed out, “Those who suffer the most from unauthorized
alien labor are those whom federal and Arizona law most explicitly protect.
They are the competing lawful workers, many unskilled, lowwage, sometimes
near or under the margin of poverty, who strain in individual competition
and in a wage economy depressed by the great and expanding number of people
who will work for less.” He said if the Act were to be suspended for any
amount of time, “the human cost for the least among us, measured by each
person’s continued deprivation, multiplied by their number, will be a great
quantum,” a loss they would never recoup.
    Reiterating how the plaintiffs, by comparison, suffer only the expense
of having their computer staff log some more hours, with off-setting
business benefits as well, Wake stated, “This is not a sharp tipping of the
balance of hardships in favor of the plaintiffs. The balance does not even
tip in their direction.” 
     In his 29-page order, Wake said, “The court sees little prospect of
success on appeal on any of plaintiffs’ alleged justiciable injuries except
the one injury the court found sufficient.” 
     Wake said because the court has found the balance of hardships tips
strongly in favor of the defendants, plaintiffs bear a high burden to prove
the new law invalid and stated, “They have not shown a likelihood of success
on the merits, much less a strong likelihood.” 
     Knocking down each of their arguments, Wake concluded, “Plaintiffs have
no substantive due process right to employ unauthorized aliens or to refuse
lawful precautions against doing so. The Act does not violate the separation
of powers principal of Art. III of the Arizona Constitution and does not
have the improbable meanings plaintiffs would give it to implicate that
principal.” 
     Only hours after Wake issued his order, the Ninth Circuit Court of
Appeals also denied the plaintiffs’ appeal for injunctive relief.