Can States Regulate Immigration? Part 2
Oklahoma's HB 1804

19 Jul 2007 in Legislation

Oklahoma's HB 1804 was enacted this spring and becomes effective on November 1, 2007.

Oklahoma's HB 1804 makes unlawful the following activities with respect to "unauthorized aliens," a term defined in the 1986 federal immigration law:

1. Transportation within the state (Section 3)
2. Concealment, harboring or sheltering (Section 3)
3. Issuance by the state of a new or renewed legal document such as a driver license (with some exceptions) (Section 4)
4. Issuance of an identification document by any nongovernmental entity authorized by law to issue such documents (Section 4)
5. The provision of public benefits (also with some exceptions) (Section 8)
6. The provision of post-secondary educational benefits or in-state tuition based on Oklahoma residency (Section 11), though with very significant exceptions (Section 13)

The law creates new responsibilities and duties for public agencies and their contractors:

1. Police are required to make "a reasonable effort" to ascertain immigration status of anyone they arrest or charge; persons not determined to be in the US legally must be reported to the federal Department of Homeland Security; and persons determined to be in the US illegally are presumed to be a flight risk (Section 5)
2. State and local agencies, and their contractors, must utilize the federal Department of Homeland Security's status verification system to ensure that unauthorized  aliens are not hired; state agencies and local governments are prohibited from entering into contracts with firms that do not, though pre-existing contracts are grandfathered (Sections 6 and 7); independent contractors providing services that do not verify that they are citizens or permanent legal residents are subject to maximum state income tax withholding (Section 9)
3. The Oklahoma attorney general is directed to enter into a memorandum of understanding with DH or the US Department of Justice to enforce federal immigration laws (Section 10)
4. Local governments and officials are prohibited from taking any action restricting citizens, government employees, or government agencies from cooperating with federal immigration authorities, including the exchange of information such as ascertaining immigration status (Section 10)
5. State agencies and local government officials are prohibited from interfering with  federal immigration law enforcement or the exchange of information with DH; and a private right of action is established enabling any person to file for a writ of mandamus to compel the cooperation of any agency or local government official (Section 10)

1. The discharge of an Oklahoma-based employee who is a US citizen or permanent resident alien while retaining an unauthorized alien hired after July 1, 2008, working in a similar job is defined as a discriminatory practice; enrollment in and use of the DH status verification system is an affirmative defense

IDENTIFICATION DOCUMENTS

New Section 4(B) prohibits, with limited exceptions in Section 4(C), the production of identification documents for unauthorized aliens. All identification documents must be limited in duration, and renewal must be accompanied by proof of citizenship or legal residency. Existing documents such as driver licenses are grandfathered, but replacements and renewals are not.

Section 4(B) appears to prohibit the issuance of "Matricula Consular" identification documents by the government of Mexico, provided that Mexico attempts to issue them from a consulate in Oklahoma (it has 47 consulates, none in Oklahoma). Normally, documents issued by sovereign governments are exempt from US laws, but the Matricula is not equivalent to a passport. State and federal governments (and persons and non-government entities) always have had the discretion to choose whether to accept them. The law tightens that discretion by implicitly directing state agencies and local governments to reject the Matricula Consular as proof of identification, and implicitly authorizing non-government entities to do the same.

These provisions can be expected to have the following effects:

• It will be increasingly difficult for unauthorized aliens to obtain identification documents asserting or implying legal presence in Oklahoma, especially documents normally used for affirmative proof of identification.
• All issuers of identification documents (and especially employers) will be increasingly wary of issuing IDs to persons whose legal presence they can't verify. Some current nongovernmental issuers (and especially employers) will stop issuing ID cards.
• The demand for forged documents will increase, as will their price. Market price will depend on the value of the document, the cost of forging them, and the prospects of enforcement against forgers and the users of forgeries. (The law does not appeal to alter existing penalties for these crimes, or the evidentiary standard for conviction.)

GOVERNMENT CONTRACTING

Current federal law makes it unlawful to hire an unauthorized alien. The new Oklahoma law supplements federal law by prohibiting state agencies and local governments from hiring unauthorized aliens or entering into new contracts with firms or entities that may do so. The law requires contractors to participate in the "basic pilot program" operated by the Department of Homeland Security, which is intended to verify immigration status. Firms that normally hire unauthorized aliens will face intensified pressure to end this practice. The amount of pressure will depend on the degree of enforcement. If public enforcement is laggard, however, the provision enabling any legal Oklahoma resident to sue to compel compliance probably would become the controlling enforcement authority.

These provisions can be expected to have the following effects:

• Public agencies and contractors will restrict, and some cases stop entirely, their practice of hiring unauthorized aliens.
• The supply of citizens and legal permanent residents being smaller, these employers will have to pay higher wages to attract the same number of workers with the same skills.
• Services that previously were provided directly or indirectly by unauthorized aliens will become more expensive.

PUBLIC BENEFITS

Access by unauthorized aliens to public benefits has been a routinely reported policy controversy. The law establishes new standards for welfare and post-secondary educational benefits, but the provisions are different.

State and local agencies must verify lawful presence, except in cases where lawful presence is not a prerequisite for eligibility. Several specific types of benefits also are excluded, such as emergency medical care, disaster assistance, immunizations, and social services such as soup kitchens, shelters and crisis interventions.

Applicants self-verify through the submission of an affidavit certifying citizenship or legal presence. No documentation supporting such claims is required. Agencies are not  required to take any affirmative step to validate these affidavits.  False claims are illegal only if provably "knowing" and "willful." The provision of local, state or federal benefits to unauthorized aliens is deemed  "unlawful," but there appears to be no sanction imposed on governmental agencies, officials, or employees who violate the law, even if violation is knowing and willful.

The practical effect of these provisions appears to be a minor paperwork burden on unauthorized aliens who fraudulently apply for public benefits. Because such applications are already illegal, the law adds only a secondary violation for filing of a false affidavit. The law will result in a material reduction in fraudulent claims only if the government finds it easier to prosecute for the crime of filing a false affidavit than for the crime of illegally obtaining public benefits.

Post-secondary education

HB 1804 makes it unlawful for any state institution to provide post-secondary education benefit such as scholarships, financial aid or in-state tuition to unauthorized aliens. However, the law also has significant exceptions and variances. Unauthorized aliens enrolled prior to the 2007-08 academic year who received such benefits are grandfathered. Unauthorized aliens graduating from Oklahoma high schools are exempt if they attended two or more years prior to  graduating. Certain paperwork requirements apply, but they do not appear to be burdensome.

The practical effect of this provision is to formalize a benefit for unauthorized aliens who seek a state-supported college education. These unauthorized aliens are permitted to enroll in state-supported colleges and universities and receive the same subsidies afforded to citizens and permanent legal residents domiciled in Oklahoma.

PRIVATE RIGHT OF ACTION FOR LABOR MARKET DISCRIMINATION

The law establishes a new per se violation of existing laws prohibiting workplace discrimination. Quoting verbatim from the text:

1. It shall be a discriminatory practice for an employing entity to discharge an employee working in Oklahoma who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after July 1, 2008, and who is working in Oklahoma in a job category that requires equal skill, effort, and responsibility, and which is performed under similar working conditions, as defined by 29 U.S.C., Section 206(d)(1), as the job category held by the discharged employee.
2. An employing entity which, on the date of the discharge in question, was currently enrolled in and used a Status Verification System to verify the employment eligibility of its employees in Oklahoma hired after July 1, 2008, shall be exempt from liability, investigation, or suit arising from any action under this section
3. No cause of action for a violation of this subsection shall arise anywhere in Oklahoma law but from the provisions of this subsection.

Translating this language into English, it is an act of discrimination to discharge any citizen or permanent legal resident while retaining on the payroll an unauthorized alien working in a similar job. Thus, if unauthorized aliens are blended into a common job function, they must be discharged first to avoid committing an overt act of employment discrimination. If unauthorized aliens are restricted to job functions in which no citizens or permanent legal residents also work, this provision does not apply. The reason for employee discharge appear to be immaterial to the fact of per se employment discrimination.

This provision can be expected to have the following effects:

1. Employers who do not adjust their conduct will face extensive civil litigation for employment discrimination. Because the violation is statutory, employer-defendants' prospects of prevailing in court are slim. The only issues to be resolved are the similarity of the job and the magnitude of damages.
2. Employers who do adjust their conduct can choose among several techniques, such as:
   1. Discharging unauthorized aliens first, as the law anticipates.
   2. Reducing or eliminating unauthorized aliens on their payrolls. which the law implicitly prefers.
   3. Where possible under the tax code, converting unauthorized aliens into independent contractors so that they cease being employees subject to the law.
   4. Restricting certain job categories to unauthorized aliens.

If employers follow 2(a) or 2(b), they will be advancing the purposes of the law. If they follow 2(c) or 2(d) they will not. Under 2(d), employers would implicitly create "jobs Americans won't do"  because Americans would be ineligible for employment in those jobs. It is possible that some citizens and legal permanent residents will be discharged prior to the effective date, and likley that they would not be hired thereafter, in these jobs.

 8 U.S.C. 1324a

1. Making employment of unauthorized aliens unlawful
   1. In general.  It is unlawful for a person or other entity—
      1. to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or
      2. 1. to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or
         2. if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b) of this section.
   2. Continuing employment. It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.
   3. Defense. A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) of this section with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral.
   4. Use of labor through contract . For purposes of this section, a person or other entity who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after November 6, 1986, to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).
   5. Use of State employment agency documentation. For purposes of paragraphs (1)(B) and (3), a person or entity shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of an individual who was referred for such employment by a State employment agency (as defined by the Attorney General), if the person or entity has and retains (for the period and in the manner described in subsection (b)(3) of this section) appropriate documentation of such referral by that agency, which documentation certifies that the agency has complied with the procedures specified in subsection (b) of this section with respect to the individual’s referral.
   6. Treatment of documentation for certain employees.
      1. In general. For purposes of this section, if—
         1. an individual is a member of a collective-bargaining unit and is employed, under a collective bargaining agreement entered into between one or more employee organizations and an association of two or more employers, by an employer that is a member of such association, and
         2. within the period specified in subparagraph (B), another employer that is a member of the association (or an agent of such association on behalf of the employer) has complied with the requirements of subsection (b) of this section with respect to the employment of the individual,

the subsequent employer shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of the employee and shall not be liable for civil penalties described in subsection (e)(5) of this section.

2. Period.  The period described in this subparagraph is 3 years, or, if less, the period of time that the individual is authorized to be employed in the United States.
3. Liability
1. In general If any employer that is a member of an association hires for employment in the United States an individual and relies upon the provisions of subparagraph (A) to comply with the requirements of subsection (b) of this section and the individual is an alien not authorized to work in the United States, then for the purposes of paragraph (1)(A), subject to clause (ii), the employer shall be presumed to have known at the time of hiring or afterward that the individual was an alien not authorized to work in the United States.
2. Rebuttal of presumption The presumption established by clause (i) may be rebutted by the employer only through the presentation of clear and convincing evidence that the employer did not know (and could not reasonably have known) that the individual at the time of hiring or afterward was an alien not authorized to work in the United States.
3. Exception Clause (i) shall not apply in any prosecution under subsection (f)(1) of this section.
7. Application to Federal Government. For purposes of this section, the term “entity” includes an entity in any branch of the Federal Governmentt

8. Miscellaneous provisions

... 

3. Definition of unauthorized alien.  As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either
   1. an alien lawfully admitted for permanent residence, or 
   2. authorized to be so employed by this chapter or by the Attorney General.

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