Friday, February 8, 2008

Anti-immigrant victory threatens us all

Arizona's threat to strip employers of their business licenses if they knowingly hire illegal immigrants survived yet another legal challenge. U.S. District Judge Neil Wake ruled that the law does not infringe on the federal government's power to regulate immigration since it doesn't apply to immigration directly, but instead to permission granted by the state to employers to do business.

The battle isn't over yet -- this challenge will join another awaiting the attention of the 9th Circuit Court of Appeals. The 9th Circuit is unpredictable, so it's anybody's guess as to the ultimate outcome.

But even if you're a cheerleader for the sanctions law and firmly in the camp that wants to see a crackdown on illegal immigration, this ruling should give you pause. Judge Wake has effectively given the nod to Arizona's implicit argument that doing business and seeking employment are privileges to be dispensed by the state according to whatever criteria officials may set. Licenses, then, become little more than levers with which to force businesses into compliance with the wishes of government officials. The E-Verify database that employers are required to consult becomes a means to grant or withhold permission to work to those seeking employment.

This isn't the rationale that was originally used to sell the idea of licensing businesses. It's increasingly hard to find a jurisdiction that still bothers to justify requiring licenses of businesses, but a few still go through the effort. The town of Cave Creek, Arizona, keeps a document online (PDF) that says:

Purpose: The purpose of the Business License is to provide an additional protection to the citizens and visitors of the Town from fraud and misrepresentation; to ensure that sales tax revenues are reported equitably; and to provide a database of the commercial activities within the community.

So the stated purpose of the business license is to ensure that businesses aren't scam artists, that they pay their taxes and to keep track of how many businesses are in the community. That seems a stretch to me -- especially the part about weeding out scammers (how is that supposed to work?), but this rationale is at least related to the fundamentals of doing business -- and paying protection money to the politicians doling out the licenses.

Cave Creek's reasons for revoking business licenses get a bit stretchier, but are still related to the fundamentals of conducting business honestly:

Licenses issued under the provisions of this chapter may be restricted, suspended or revoked by the Town Clerk, after notice and an opportunity for a hearing, for any of the following causes:
A. Fraud, misrepresentation or false statement contained in the application for license.
B. Fraud, misrepresentation or false statement made in the course of carrying on the business.
C. Any violation of this chapter.
D. Conviction of any crime or misdemeanor involving moral turpitude.
E. Conducting business in violation of any Town ordinance, county ordinance or state law relating to the public health, safety and welfare.

So no fraud or misrepresentation, and you can't do business in such a way as to harm the public. Honestly, you could drive a truck through the moral turpitude clause -- and probably through the bit about "public health, safety and welfare," too. But the overall implication is that the license is supposed to make sure that businesses operate in an honest and above-board fashion. There's no implication that threats of revocation are intended to be used as a bludgeon to enforce compliance with every whim of the political class.

So how did we get here?

It was probably inevitable the moment that licenses were first required. No matter how well-intentioned and closely related to the business of doing business the original requirements for licenses may have been, they still converted doing business into a privilege. Once you require permission to engage in an activity, the conditions for that permission can always change. Permission was originally granted so long as you didn't fleece the yokels and gave politicians their take. Now permission is conditional on compliance with a law that has nothing to do with the integrity of the business itself. Licenses then become just another enforcement tool to guarantee public submission to government authority.

So it is with the E-Verify database. The requirement that all job applicants (and, potentially, even job-holders) be vetted through the database makes employment a privilege to be doled out only to those who have government permission to work. The conditions for that permission now depend on residency status, but there's no reason they can't be expanded in the future. Depending on political trends down the road, permission to work could be denied to tax resisters, convicted drug dealers, political radicals or any other disfavored class of people.

In its fervor to drive illegal immigrants out of Arizona and, eventually, out of the United States, the nativist movement is making it increasingly necessary for all of us to avoid offending government officials, simply so we can continue to put food on the table.

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Anonymous Anonymous said...

That's a thoughtful, but incorrect analysis. Just as your quote from the Cave Creek licensing ordinance states, businesses must comply with state laws if they want to do business in the state. A law stating that businesses cannot hire those unentitled to work in the US is related to the public welfare. Deliberate flouting of that law undermines the rule of law and harms society. So you are incorrect to say that Arizona's law has nothing to do with the integrity of the business itself. A business that deliberately breaks the law has no integrity and no regard for public welfare. You are also wrong that the decision will lead to states expanding the conditions for permission to do business. Equal protection and due process of law are adequate legal safeguards to prevent state discrimination not based on sound public policy.

February 9, 2008 11:53 AM  
Blogger J.D. Tuccille said...

I appreciate your take on the use of licensing to enforce compliance with the immigration law, but I can't help but interpret your comment as general agreement with my post.

You never object to my characterization of licensing as converting the right to do business into a privilege (just as, similarly, E-verify converts the right to work into a privilege). I don't agree that it's obvious that "[a] law stating that businesses cannot hire those unentitled to work in the US is related to the public welfare," but even if I grant your assertion, that just confirms the point that licensing has converted the doing of business into a revocable privilege. Your statement that "[a] business that deliberately breaks the law has no integrity and no regard for public welfare" expands the category of laws that a business must obey in order to maintain its privilege well beyond the small category of requirements directly related to the specific conduct of a given business.

Contrast that with the exercise of free speech, which is still recognized as a true right. Abuse of the right may be punished, but the right can't be revoked for any reason.

The sole point on which we disagree is the extent to which the use of licensing will be expanded to compel compliance with government edicts. I hope that you are right that "[e]qual protection and due process of law are adequate legal safeguards," but the history of licensing to-date suggests otherwise.

February 10, 2008 7:11 AM  
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March 18, 2009 11:57 PM  

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