Horizon, Host: Ted Simons

March 22, 2007


Host: Cary Pfeffer

Employer Sanctions


  • A bill has been passed by the Arizona House and is on its way to the Senate to impose sanctions on employers who knowingly hire illegal aliens. The bill is opposed by several chambers of commerce. A state lawmaker and a representative from the Arizona Chamber of Commerce will discuss the bill.
Guests:
  • John McComish - State representative
  • Glenn Hamer - Arizona Chamber of Commerce
  • Paul Bender - Professor, College of Law, Arizona State University
Category: Immigration

View Transcript
Cary Pfeffer:
The state has to fire an illegal immigrant.
Arizona's Paul Charlton was one of eight U.S. attorneys fired. We'll talk with an A.S.U. law professor about the firing. And sometimes home lending is starting to cause problems. An economist will bring us up-to-date. All that coming up on Horizon.

Announcer:
Horizon is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Cary Pfeffer:
Good evening and welcome to Horizon. I'm Cary Pfeffer. The sixth annual Cesar Chavez luncheon took place today at the phoenix convention center. This year's event paid tribute to Arizona women who helped Chavez fight for the civil rights of workers during the 1960's and 70's. Dolores Huerta was the keynote speaker.

Dolores Huerta:
Have always did things not very comfortable but right for people. He called on people to do things that always made them go. The women we're recognizing today were out there doing marches, picket, many times on the negotiating table, doing the strikes and the things they wanted to do. I want to mention to you that you Arizonans are really going to be given a separate honor in addition to the one that you have by being the native state of Cesar Chavez. There is a bill in the congress right now, and it has the support of both the senate and the House of Representatives. This bill is by congresswoman Hilda Solis. This bill it looks like it will pass. They'll have the first hearings next week. Because every place that was significant to Cesar's life will be named a historical site. How about that? [applause]

Cary Pfeffer:
You can learn more about the life of Cesar Chavez on Horizonte tonight right after Horizon.

Cary Pfeffer:
It was an ironic day last Thursday at the state capitol. The same day the house passed a measure on employer sanctions it had to fire a worker who was hired illegally. We'll hear more about the employer sanctions bill. But first mike Sauceda tells us about the worker who was fired.

Mike Sauceda:
The housekeeper was found out to be an illegal immigrant during a routine check of all social security numbers by the state department of administration using social security verification.

Barret Marson:
We had a member of our cleaning crew. He was hired in December. At that time we submitted his name as we do to all employees to the department of administration to do a social security verification check, which all state agencies do. At some point, D.O.A. did a social security verification and it came back that this particular gentleman's social security number was not -- did not match the name that social security had on file. So his -- a human resources manager went to him and said, you have eight days to clear this up. At some point eventually later he went to his supervisor and said he was not going to be able to clear it up because he was an illegal. So really what this shows is that social security verification works.

Mike Sauceda:
That employee was fired the same day a bill was passed by the house that would create sanctions for employers who knowingly hire illegal immigrants.

Barret Marson:
That bill requires every employer to sign an affidavit saying that they do not knowingly employ an illegal immigrant. The penalty for not -- for violating that is rather stiff. But again, you're signifying that you do not knowingly hire and knowingly employ an illegal. So we are counting on businesses to first of all know that their employees are illegal and are in this country improperly and allowed to work and that being honest when they're filling out these affidavits. It also provides money for the attorney general and county attorneys to investigate and to prosecute these case.

Mike Sauceda:
The house did notify officials once it was discovered the worker was illegal.

Barret Marson:
This young man did confess, you're right. But that's not necessarily all employees. Some people may say, I don't want to go through that hassle. They may not be illegal. They may just have a bad -- there may be some other reason why they don't fit. It may not be because they're illegal. However, the house did inform law enforcement of this particular man's situation. And I don't know where that is.

Cary Pfeffer:
And here now to discuss the employer sanctions bill is state representative John McComish and Glenn Hamer of the Arizona chamber of commerce. Thanks to both of you for being here.

John McComish:
Thank you for having us.

Cary Pfeffer:
And representative McComish, let's start with you in talking about the sanctions that would be part of this bill as it stands now. We just heard that basically the idea is if you're an employer you can't knowingly have somebody who is here illegally on your payroll.

John McComish:
Correct.

Cary Pfeffer:
When someone is found to be in violation, as it stands now, what kind of sanctions would they face?

John McComish:
As we saw, all employers will be required to sign an affidavit saying that they are not going to, and that's to get around the federal pre-emption aspect of it. Once that happens, if an employer is found to have knowingly hired an illegal or illegals, then that employer will be fined $2,500 minimum.

Cary Pfeffer:
Per person or per violation? Per violation.

John McComish:
Yes. Exactly. Per violation. Not per person. And then there's a progressive steps for if they're found the first time to be guilty, to have a violation, second time, third time it gets progressively worse. First time is $2,500. Then it increases to 5,000 and 10,000. That's a minimum fine. And in addition to that, if they're found guilty, if they are found guilty it would be a class 6 felony. And there's provisions in the law for an additional fine should the courts see that that was fit. And there's also provision for jail time if the court saw that that was fit. And there's a provision for loss of a license. And as I say, it depends on first time, second time, third time. Each one gets a little more progressively painful.

Cary Pfeffer:
And the idea is to provide some leeway on the judge's part so if someone is sort of a serial violator or is sort of in a wanton way ignored the law that they can step in.

John McComish:
Yes. Before bringing this bill to a vote, we had many conversations with stakeholders such as Glenn Hamer and the Arizona chamber. And the one thing that kept coming back from them to us was that there needs to be due process in this. And that's what we tried to bill in so that it could be fair.

Cary Pfeffer:
And Glenn, let's get your take on the bill as it stands now. And your organization's take on where it stands.

Glenn Hamer:
Well, I would first like to say that we're very fortunate that we have a very talented and responsive leadership team in the state house, as well as the state senate.

Cary Pfeffer:
We'll see how far that gets you. [laughter] No I'm just kidding

Glenn Hamer:
Well, I say that with all sincerity. The Arizona chamber's point and the position of the vast majority of the chambers in the state is that we absolutely want to see the immigration problems fixed. We know that Arizona is disproportionately impacted. There are lots of costs associated with this to hospitals, to education, incarceration, to taxpayers. At the end of the day we really need the federal government to step up and to provide a comprehensive solution. And a big part of that effort will require putting together a bulletproof worker verification system. That simply does not exist today.

Cary Pfeffer:
And your feeling is that the state is -- it's not possible for the state to have that kind of a system as far as you're concerned? We have to have sort of a federal layer of this federal layer.

Glenn Hamer:
We do need a federal layer. And I believe that all the state efforts reflect that in one way or another, through either reference to the federal basic pilot program or through the current process which employers verify the status.

Cary Pfeffer:
Right.

Glenn Hamer:
One additional point I will make is that I am not here to defend employers who knowingly break the law. They should be punished. And in fact there are already very stiff federal penalties. And the current administration, the Bush administration has really stepped up the prosecution of those employers who are knowingly hiring illegal aliens.

Cary Pfeffer:
But you know also that the general populace when you do a public opinion poll say there has to be something done. So state lawmakers are saying -- and quickly I want you to respond on that, they feel like they need to do something.

Glenn Hamer:
Well when you take a look at the vote, it was certainly -- it was a very bipartisan, a very strong vote. So that -- what you've just stated is a fact. But our point is that there are just certain activities that we'll need to get fixed on the federal level for us to achieve the solution that we all would like to see happen.

Cary Pfeffer:
And if you were to predict and look at sort of where this bill will end up, what's your sense of --

John McComish:
I believe that it has to go to the senate. It's passed through the house. And it will go through the normal processes, senate committee hearing, be heard on the floor. And I believe it will pass out of the senate. Then of course it will have to go to the governor. And I believe the governor will sign it. I just wanted to comment briefly on what Glenn said. In the house we agree that federal government needs to step up and be more diligent in their efforts. But in the mean while, we have to respond to the needs of the state. And we believe that we have.

Cary Pfeffer:
Representative McComish, appreciate your being here as well as Glenn Hamer, appreciate your being here from the chamber of commerce.

Cary Pfeffer:
Controversy grows concerning the firing of eight U.S. attorneys, a group of which included our own U.S. attorney in Arizona, Paul Charlton. Jose Cardenas spoke with A.S.U. professor Paul Bender about the firings and about how U.S. attorneys are appointed.

Jose Cardenas:
Dean Bender explain for us the process by which U.S. attorneys are initially selected.

Paul Bender:
U.S. attorneys are presidential appointments so they have to be confirmed by the senate. The typical way, same way judges are selected, the president nominates and the senate has to consent to the appointment.

Jose Cardenas:
What happens when you have a vacancy for whatever reason?

Paul Bender:
Well, ordinarily before the patriot act was passed, what would happen would be the same thing that happens when a judge retires. The president nominates somebody new and that person gets confirmed as well. There's an interim period, usually, when the president has been allowed to name an interim person for whatever time it takes. I think there's a limit that interim can't serve for more than about six months. And if nobody is picked to replace, then I think the chief judge of the district gets to pick. But ordinarily it's basically the same as other federal high-level federal offices are. Except that unlike a judge, they don't have life tenure.

Jose Cardenas:
Now that's the way it was before the patriot act. But there were some changes made by it. What can you tell me?

Paul Bender:
I'm not sure exactly the details. But I believe the patriot act provided that when a vacancy would arise with U.S. attorney generals the president or the attorney general could fill a vacancy indefinitely, without appointing a permanent replacement. That means that if somebody was fired or resigned you could pick a replacement and you never have to take that replacement before the senate for confirmation, which would avoid the senate asking questions about why did you fire the other person.

Jose Cardenas:
Or even inquiring about the qualifications of the new person.

Paul Bender:
That's right.

Jose Cardenas:
As I understand, this was an amendment to the patriot act. It wasn't part of the original legislation.

Paul Bender:
I think that's true and I'm not positive. One of the how is of congress has now changed that and I think that is going to be changed so that in the future it's going to be like it always was. The president nominates. He can appoint an interim person but just for the interim.

Jose Cardenas:
Now how much of that was a factor in the initial -- what seems to have been the initial proposal in the bush administration to replace all of the U.S. attorneys after the November elections?

Paul Bender:
Yeah. That's been done by some presidents and not by others. I think Clinton replaced them all.

Jose Cardenas:
You mean at the beginning --

Paul Bender:
At the beginning of his first term when he was first elected. That's sort of like picking your own cabinet. Not exactly because I think prosecutors should be more independent. But a president is thought to have the right when he comes in --

Jose Cardenas:
More typical of a new administration.

Paul Bender:
It doesn't always happen. I think you shouldn't really fire them all. If you have good people who are willing to stay on, you should keep them. But it's perfectly ordinary for the president to ask them all to leave and to pick a new slate. What's different about this case is that it's not ordinary to change them for political reasons or to change them really for any reason other than incompetence. It's really important that prosecutors have independence from the political system. And so the tradition has been that once they're appointed they stay for that first term of the president, maybe they would resign at the end of the first term. But you don't fire them because they're not doing politically the things you want them to do.

Jose Cardenas:
What about just firing them because you want to change them? I mean, theoretically they serve at the pleasure of the president and the president can have no reason for replacing them.

Paul Bender:
Constitutionally the president has the right to replace them whenever the president wants. But tradition has been that those jobs are above politics and are more like judges than they are like cabinet members. Because they have so much power as prosecutors. Prosecutors have your life in their hands in lots of ways. They can subject you to a process that's going to ruin your life, even if you're ultimately acquitted. So the tradition has been in the justice department, in the office that I worked in the solicitor general's office, if the solicitor general is picked by the president but no one would think that president should call up the solicitor general and ask him what position he's taking on a particular case and try to influence that position for political reasons. And the same thing with the U.S. attorneys. They're supposed to be independent of politics. So you shouldn't fire them. And presidents have not traditionally fired them unless they were incompetent.

Jose Cardenas:
What about for policy reasons? Every new president has a different priority or the attorney general has an area of emphasis that at least initially the suggestion in the case of the U.S. attorney for Arizona was that concerns were that he was feeling a different policy in death penalty cases for example. Isn't that prerogative of the executive?

Paul Bender:
It's the prerogative. Normally you wouldn't think that should happen. If president picks miss own people at the beginning it would be people who would go along with his policies. But I suppose if the person refuses to go along with a general policy you could fire him. That in a sense to me is incompetence because the president has the right to set general policies. Let's emphasize antitrust cases, let's emphasize immigration cases. But that's a lot different from, we want you to prosecute somebody or we don't want you to prosecute somebody for political reasons. And you won't do it so we're going to get rid of you. That's the kind of thing that shouldn't happen. Whether that happened here or not, I don't know. The suggestions are that it has. And the fact that white house keeps giving different reasons for doing this raises the doubt about whether that's happened. And if that has happened, that would really be bad.

Jose Cardenas:
And I should emphasize that we don't know -- as a matter of fact I'm not sure there's any evidence that Paul Charlton refused to follow a particular policy. He clearly did have some different views and expressed them apparently. It looks like we have a different constitutional crisis brewing related to this. And that is the president's apparent refusal to allow members of his team, Harriet Myers, Karl Rove, to testify under oath. What do you see happening there?

Paul Bender:
Or even, as I understand it, to testify publicly and to testify on the record. He wants it to be done informally, in private and without any oath or record. And the senate and the house want to subpoena people if they won't testify voluntarily on the record in public under oath. That could raise a constitutional problem of whether the congress has the power to require people who work for the president to come and testify before them under oath. Congress normally has the power to require anybody to testify about something that's relevant to them. But presidents have in the past asserted executive privilege. And the executive privilege has been recognized as a general matter by the Supreme Court. But it has not really spelled out the exact contours of it. In the most famous case involving President Nixon's refusal to turn over materials to the prosecutor, the court held that he did not have executive privilege to do that because it was so important, the material was relevant to a criminal prosecution. Beyond that the court has just said that there is a general executive privilege which can't be violated just randomly or for no good reason. But I think it's suggested that if there's a good reason, it can be violated. So nobody knows exactly if Karl Rove refuses to respond to the subpoena and congress holds him in contempt for doing, that congress would have the right to hold him in contempt. I think it's a weak case for executive privilege in the sense that what they want to ask Rove about or those other people is not a conversation with the president. That would be the most likely thing to be privileged. But a conversation with the attorney general or with other people in the justice department would not.

Jose Cardenas:
Which would not be privileged?

Paul Bender:
I don't think so. The strongest case of privilege is advice given directly to the president.

Jose Cardenas:
Dean Bender we'll have to leave it there. I'm sure there'll be more as this issue develops. Thanks, you for joining us.

Paul Bender:
Thank you, Jose.

Cary Pfeffer:
Finally tonight there are concerns that home foreclosures could increase because of increasing home payments due to sub prime lending. Lending methods such as giving adjustable rate mortgages to some homeowners who might not normally qualify could cause payments to go up hundreds of dollars. And here to discuss that and how the economy here in Arizona might be impacted is Jay Butler, the director of the Arizona real estate at A.S.U.'s polytechnic campus. Thank you for being here. We hear this term. Why don't you first of all give the cliff notes version of what sub prime lending is and then what its impact is.

Jay Butler:
Sub prime refers to the borrowers. They don't qualify for the top product being offered by a particular person, either because they have bad credit record or low FICA score; they don't have enough income, et cetera. So they are sub prime. We've always had sub prime borrowers, just that they became a bigger focus the last three to four years of this particular housing markets.

Cary Pfeffer:
The reason they became a bigger focus is with some lower interest rates and sort of creative ways to get those folks into homes that they might not normally be able to?

Jay Butler:
Yeah. The home prices going up. So because of higher home prices you had to get people in there. People were stretching because high appreciation they figure will stretch a year or two, then we'll be okay. And also we were beginning to sort of run out of the good people so you had to keep -- if you wanted to make your profits and other things you kept bringing in more and more people and they had to expand your offerings to the sub prime people.

Cary Pfeffer:
So now there's a big focus on those mortgage firms that made those loans and what the ultimate impact would be. There's concern on Wall Street and there certainly would be concern here in Arizona, correct?

Jay Butler:
Sure. Because again because Arizona tends to be a lower income, high minority base, home prices considerably went up in the last couple of years. So you would have a lot of focus. And not only is it focusing now on the sub prime but it's beginning to focus in all those other things. So you're bringing in the no doc type loans and the non traditional things. Interest only, et cetera. So you're expanding that examination because of what's happening in the sub prime market.

Cary Pfeffer:
And what kind of an impact might it have here in Arizona? In other words, we hear about folks who are falling behind. Are we talking about a big boost in an already -- in an inventory that's already pretty substantial here in the state?

Jay Butler:
Probably not. The economy is good. So those are going to hold together. Really what you're going to have is the investor home is probably one that's in trouble. And that's why it's up. You're going to have some people who either lose jobs or their income just doesn't keep up. And that is going to be a group. Probably not right now a big thing. Because the economy is still very good. But if the economy takes a hit, then this begins to expand rapidly.

Cary Pfeffer:
Exactly. I said there's also concern on Wall Street. There's concern there because of the sort of the underpinnings of some of these firms.

Jay Butler:
Right. There's a conference today looking at derivatives and financial securities. The whole thing was on the containment of the sub prime risk conditions.

Cary Pfeffer:
And what might we see if this becomes a big enough issue or, as you mentioned, if there's another hiccup in the economy and then this stuff becomes even more prominent, what are we likely to see? Will there be attempts at sort of reforms and changing some of those rules? What direction might that go?

Jay Butler:
Of course we'll all try to reform and change the rules. It's hard to figure out how to change the rules. Are you going to say we're not going to lend to this group of people? Well, they're minorities, low income. Don't they have certain rights? Might be that you more structure the package. You're not going to give them 1\% interest and watch it rise. You're going to structure that sort of thing. Now the issue is going to be, do we get into the predatory financing issue where these people were sort of forced into these sub prime loans. So it's probably going to narrow the market. But yet these people have housing rights, too. It's just sometimes they just got in over their heads.

Cary Pfeffer:
And there should be caution out there also on the part of some folks when they're dealing with -- when they're trying to make those decisions I guess, too.

Jay Butler:
Right. The idea, everybody got caught up in the hyper appreciation thing and they thought it was going to go on forever. It didn't and it never does.

Cary Pfeffer:
Anybody who's lived here long enough certainly appreciates that.

Jay Butler:
We can always hope.

Cary Pfeffer:
Exactly. And the reason we have to be concerned about the overall economy is if there's a glitch in the economy, it makes it harder for people to make those payments.

Jay Butler:
Right. Not only make the payments, but a lot of people are refinancing their homes to pay for automobiles, trips and other things. So that gets cut back. Also as the sub prime lenders lay off people in a couple instances go out of business, we begin to increase that group. And that group goes from earning very good money to basically zero. And so that's going to have some implications this thing. A lot of them are fairly young. They were into this group in their 20's and 30's because a lot of companies are hiring. And everybody is going to be looked at. If you're a even if you weren't in the sub prime they're going to look at seeing what you were doing and if you shouldn't have been doing it. And seeing what happens.

Cary Pfeffer:
We'll see what happens. A.S.U. economist Jay Butler thanks very much for being here.

Jay Butler:
Glad to be here.

Merry Lucero:
New figures from the census bureau show Maricopa County had the largest population increase of any county in the country since the 2000 census. And you may vote on an initiative next year that would prohibit drivers from using cell phones while they are on the road. Those stories and more on the journalists roundtable Friday at 7:00 on Horizon.

Cary Pfeffer:
Always an interesting time here every Friday for the journalists roundtable. I'm Cary Pfeffer. Thanks very much for watching. Good night.

sub prime Lending


  • Arizona has the highest rate of sub prime loans in the nation. There are concerns that there could be a high rate of default on such loans. Economist Jay Butler of Arizona State University's Polytechnic Campus will bring us up to date on the sublime lending situation.
Guests:
  • John McComish - State representative
  • Glenn Hamer - Arizona Chamber of Commerce
  • Paul Bender - Professor, College of Law, Arizona State University
Category: Business/Economy

View Transcript
Cary Pfeffer:
The state has to fire an illegal immigrant.
Arizona's Paul Charlton was one of eight U.S. attorneys fired. We'll talk with an A.S.U. law professor about the firing. And sometimes home lending is starting to cause problems. An economist will bring us up-to-date. All that coming up on Horizon.

Announcer:
Horizon is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Cary Pfeffer:
Good evening and welcome to Horizon. I'm Cary Pfeffer. The sixth annual Cesar Chavez luncheon took place today at the phoenix convention center. This year's event paid tribute to Arizona women who helped Chavez fight for the civil rights of workers during the 1960's and 70's. Dolores Huerta was the keynote speaker.

Dolores Huerta:
Have always did things not very comfortable but right for people. He called on people to do things that always made them go. The women we're recognizing today were out there doing marches, picket, many times on the negotiating table, doing the strikes and the things they wanted to do. I want to mention to you that you Arizonans are really going to be given a separate honor in addition to the one that you have by being the native state of Cesar Chavez. There is a bill in the congress right now, and it has the support of both the senate and the House of Representatives. This bill is by congresswoman Hilda Solis. This bill it looks like it will pass. They'll have the first hearings next week. Because every place that was significant to Cesar's life will be named a historical site. How about that? [applause]

Cary Pfeffer:
You can learn more about the life of Cesar Chavez on Horizonte tonight right after Horizon.

Cary Pfeffer:
It was an ironic day last Thursday at the state capitol. The same day the house passed a measure on employer sanctions it had to fire a worker who was hired illegally. We'll hear more about the employer sanctions bill. But first mike Sauceda tells us about the worker who was fired.

Mike Sauceda:
The housekeeper was found out to be an illegal immigrant during a routine check of all social security numbers by the state department of administration using social security verification.

Barret Marson:
We had a member of our cleaning crew. He was hired in December. At that time we submitted his name as we do to all employees to the department of administration to do a social security verification check, which all state agencies do. At some point, D.O.A. did a social security verification and it came back that this particular gentleman's social security number was not -- did not match the name that social security had on file. So his -- a human resources manager went to him and said, you have eight days to clear this up. At some point eventually later he went to his supervisor and said he was not going to be able to clear it up because he was an illegal. So really what this shows is that social security verification works.

Mike Sauceda:
That employee was fired the same day a bill was passed by the house that would create sanctions for employers who knowingly hire illegal immigrants.

Barret Marson:
That bill requires every employer to sign an affidavit saying that they do not knowingly employ an illegal immigrant. The penalty for not -- for violating that is rather stiff. But again, you're signifying that you do not knowingly hire and knowingly employ an illegal. So we are counting on businesses to first of all know that their employees are illegal and are in this country improperly and allowed to work and that being honest when they're filling out these affidavits. It also provides money for the attorney general and county attorneys to investigate and to prosecute these case.

Mike Sauceda:
The house did notify officials once it was discovered the worker was illegal.

Barret Marson:
This young man did confess, you're right. But that's not necessarily all employees. Some people may say, I don't want to go through that hassle. They may not be illegal. They may just have a bad -- there may be some other reason why they don't fit. It may not be because they're illegal. However, the house did inform law enforcement of this particular man's situation. And I don't know where that is.

Cary Pfeffer:
And here now to discuss the employer sanctions bill is state representative John McComish and Glenn Hamer of the Arizona chamber of commerce. Thanks to both of you for being here.

John McComish:
Thank you for having us.

Cary Pfeffer:
And representative McComish, let's start with you in talking about the sanctions that would be part of this bill as it stands now. We just heard that basically the idea is if you're an employer you can't knowingly have somebody who is here illegally on your payroll.

John McComish:
Correct.

Cary Pfeffer:
When someone is found to be in violation, as it stands now, what kind of sanctions would they face?

John McComish:
As we saw, all employers will be required to sign an affidavit saying that they are not going to, and that's to get around the federal pre-emption aspect of it. Once that happens, if an employer is found to have knowingly hired an illegal or illegals, then that employer will be fined $2,500 minimum.

Cary Pfeffer:
Per person or per violation? Per violation.

John McComish:
Yes. Exactly. Per violation. Not per person. And then there's a progressive steps for if they're found the first time to be guilty, to have a violation, second time, third time it gets progressively worse. First time is $2,500. Then it increases to 5,000 and 10,000. That's a minimum fine. And in addition to that, if they're found guilty, if they are found guilty it would be a class 6 felony. And there's provisions in the law for an additional fine should the courts see that that was fit. And there's also provision for jail time if the court saw that that was fit. And there's a provision for loss of a license. And as I say, it depends on first time, second time, third time. Each one gets a little more progressively painful.

Cary Pfeffer:
And the idea is to provide some leeway on the judge's part so if someone is sort of a serial violator or is sort of in a wanton way ignored the law that they can step in.

John McComish:
Yes. Before bringing this bill to a vote, we had many conversations with stakeholders such as Glenn Hamer and the Arizona chamber. And the one thing that kept coming back from them to us was that there needs to be due process in this. And that's what we tried to bill in so that it could be fair.

Cary Pfeffer:
And Glenn, let's get your take on the bill as it stands now. And your organization's take on where it stands.

Glenn Hamer:
Well, I would first like to say that we're very fortunate that we have a very talented and responsive leadership team in the state house, as well as the state senate.

Cary Pfeffer:
We'll see how far that gets you. [laughter] No I'm just kidding

Glenn Hamer:
Well, I say that with all sincerity. The Arizona chamber's point and the position of the vast majority of the chambers in the state is that we absolutely want to see the immigration problems fixed. We know that Arizona is disproportionately impacted. There are lots of costs associated with this to hospitals, to education, incarceration, to taxpayers. At the end of the day we really need the federal government to step up and to provide a comprehensive solution. And a big part of that effort will require putting together a bulletproof worker verification system. That simply does not exist today.

Cary Pfeffer:
And your feeling is that the state is -- it's not possible for the state to have that kind of a system as far as you're concerned? We have to have sort of a federal layer of this federal layer.

Glenn Hamer:
We do need a federal layer. And I believe that all the state efforts reflect that in one way or another, through either reference to the federal basic pilot program or through the current process which employers verify the status.

Cary Pfeffer:
Right.

Glenn Hamer:
One additional point I will make is that I am not here to defend employers who knowingly break the law. They should be punished. And in fact there are already very stiff federal penalties. And the current administration, the Bush administration has really stepped up the prosecution of those employers who are knowingly hiring illegal aliens.

Cary Pfeffer:
But you know also that the general populace when you do a public opinion poll say there has to be something done. So state lawmakers are saying -- and quickly I want you to respond on that, they feel like they need to do something.

Glenn Hamer:
Well when you take a look at the vote, it was certainly -- it was a very bipartisan, a very strong vote. So that -- what you've just stated is a fact. But our point is that there are just certain activities that we'll need to get fixed on the federal level for us to achieve the solution that we all would like to see happen.

Cary Pfeffer:
And if you were to predict and look at sort of where this bill will end up, what's your sense of --

John McComish:
I believe that it has to go to the senate. It's passed through the house. And it will go through the normal processes, senate committee hearing, be heard on the floor. And I believe it will pass out of the senate. Then of course it will have to go to the governor. And I believe the governor will sign it. I just wanted to comment briefly on what Glenn said. In the house we agree that federal government needs to step up and be more diligent in their efforts. But in the mean while, we have to respond to the needs of the state. And we believe that we have.

Cary Pfeffer:
Representative McComish, appreciate your being here as well as Glenn Hamer, appreciate your being here from the chamber of commerce.

Cary Pfeffer:
Controversy grows concerning the firing of eight U.S. attorneys, a group of which included our own U.S. attorney in Arizona, Paul Charlton. Jose Cardenas spoke with A.S.U. professor Paul Bender about the firings and about how U.S. attorneys are appointed.

Jose Cardenas:
Dean Bender explain for us the process by which U.S. attorneys are initially selected.

Paul Bender:
U.S. attorneys are presidential appointments so they have to be confirmed by the senate. The typical way, same way judges are selected, the president nominates and the senate has to consent to the appointment.

Jose Cardenas:
What happens when you have a vacancy for whatever reason?

Paul Bender:
Well, ordinarily before the patriot act was passed, what would happen would be the same thing that happens when a judge retires. The president nominates somebody new and that person gets confirmed as well. There's an interim period, usually, when the president has been allowed to name an interim person for whatever time it takes. I think there's a limit that interim can't serve for more than about six months. And if nobody is picked to replace, then I think the chief judge of the district gets to pick. But ordinarily it's basically the same as other federal high-level federal offices are. Except that unlike a judge, they don't have life tenure.

Jose Cardenas:
Now that's the way it was before the patriot act. But there were some changes made by it. What can you tell me?

Paul Bender:
I'm not sure exactly the details. But I believe the patriot act provided that when a vacancy would arise with U.S. attorney generals the president or the attorney general could fill a vacancy indefinitely, without appointing a permanent replacement. That means that if somebody was fired or resigned you could pick a replacement and you never have to take that replacement before the senate for confirmation, which would avoid the senate asking questions about why did you fire the other person.

Jose Cardenas:
Or even inquiring about the qualifications of the new person.

Paul Bender:
That's right.

Jose Cardenas:
As I understand, this was an amendment to the patriot act. It wasn't part of the original legislation.

Paul Bender:
I think that's true and I'm not positive. One of the how is of congress has now changed that and I think that is going to be changed so that in the future it's going to be like it always was. The president nominates. He can appoint an interim person but just for the interim.

Jose Cardenas:
Now how much of that was a factor in the initial -- what seems to have been the initial proposal in the bush administration to replace all of the U.S. attorneys after the November elections?

Paul Bender:
Yeah. That's been done by some presidents and not by others. I think Clinton replaced them all.

Jose Cardenas:
You mean at the beginning --

Paul Bender:
At the beginning of his first term when he was first elected. That's sort of like picking your own cabinet. Not exactly because I think prosecutors should be more independent. But a president is thought to have the right when he comes in --

Jose Cardenas:
More typical of a new administration.

Paul Bender:
It doesn't always happen. I think you shouldn't really fire them all. If you have good people who are willing to stay on, you should keep them. But it's perfectly ordinary for the president to ask them all to leave and to pick a new slate. What's different about this case is that it's not ordinary to change them for political reasons or to change them really for any reason other than incompetence. It's really important that prosecutors have independence from the political system. And so the tradition has been that once they're appointed they stay for that first term of the president, maybe they would resign at the end of the first term. But you don't fire them because they're not doing politically the things you want them to do.

Jose Cardenas:
What about just firing them because you want to change them? I mean, theoretically they serve at the pleasure of the president and the president can have no reason for replacing them.

Paul Bender:
Constitutionally the president has the right to replace them whenever the president wants. But tradition has been that those jobs are above politics and are more like judges than they are like cabinet members. Because they have so much power as prosecutors. Prosecutors have your life in their hands in lots of ways. They can subject you to a process that's going to ruin your life, even if you're ultimately acquitted. So the tradition has been in the justice department, in the office that I worked in the solicitor general's office, if the solicitor general is picked by the president but no one would think that president should call up the solicitor general and ask him what position he's taking on a particular case and try to influence that position for political reasons. And the same thing with the U.S. attorneys. They're supposed to be independent of politics. So you shouldn't fire them. And presidents have not traditionally fired them unless they were incompetent.

Jose Cardenas:
What about for policy reasons? Every new president has a different priority or the attorney general has an area of emphasis that at least initially the suggestion in the case of the U.S. attorney for Arizona was that concerns were that he was feeling a different policy in death penalty cases for example. Isn't that prerogative of the executive?

Paul Bender:
It's the prerogative. Normally you wouldn't think that should happen. If president picks miss own people at the beginning it would be people who would go along with his policies. But I suppose if the person refuses to go along with a general policy you could fire him. That in a sense to me is incompetence because the president has the right to set general policies. Let's emphasize antitrust cases, let's emphasize immigration cases. But that's a lot different from, we want you to prosecute somebody or we don't want you to prosecute somebody for political reasons. And you won't do it so we're going to get rid of you. That's the kind of thing that shouldn't happen. Whether that happened here or not, I don't know. The suggestions are that it has. And the fact that white house keeps giving different reasons for doing this raises the doubt about whether that's happened. And if that has happened, that would really be bad.

Jose Cardenas:
And I should emphasize that we don't know -- as a matter of fact I'm not sure there's any evidence that Paul Charlton refused to follow a particular policy. He clearly did have some different views and expressed them apparently. It looks like we have a different constitutional crisis brewing related to this. And that is the president's apparent refusal to allow members of his team, Harriet Myers, Karl Rove, to testify under oath. What do you see happening there?

Paul Bender:
Or even, as I understand it, to testify publicly and to testify on the record. He wants it to be done informally, in private and without any oath or record. And the senate and the house want to subpoena people if they won't testify voluntarily on the record in public under oath. That could raise a constitutional problem of whether the congress has the power to require people who work for the president to come and testify before them under oath. Congress normally has the power to require anybody to testify about something that's relevant to them. But presidents have in the past asserted executive privilege. And the executive privilege has been recognized as a general matter by the Supreme Court. But it has not really spelled out the exact contours of it. In the most famous case involving President Nixon's refusal to turn over materials to the prosecutor, the court held that he did not have executive privilege to do that because it was so important, the material was relevant to a criminal prosecution. Beyond that the court has just said that there is a general executive privilege which can't be violated just randomly or for no good reason. But I think it's suggested that if there's a good reason, it can be violated. So nobody knows exactly if Karl Rove refuses to respond to the subpoena and congress holds him in contempt for doing, that congress would have the right to hold him in contempt. I think it's a weak case for executive privilege in the sense that what they want to ask Rove about or those other people is not a conversation with the president. That would be the most likely thing to be privileged. But a conversation with the attorney general or with other people in the justice department would not.

Jose Cardenas:
Which would not be privileged?

Paul Bender:
I don't think so. The strongest case of privilege is advice given directly to the president.

Jose Cardenas:
Dean Bender we'll have to leave it there. I'm sure there'll be more as this issue develops. Thanks, you for joining us.

Paul Bender:
Thank you, Jose.

Cary Pfeffer:
Finally tonight there are concerns that home foreclosures could increase because of increasing home payments due to sub prime lending. Lending methods such as giving adjustable rate mortgages to some homeowners who might not normally qualify could cause payments to go up hundreds of dollars. And here to discuss that and how the economy here in Arizona might be impacted is Jay Butler, the director of the Arizona real estate at A.S.U.'s polytechnic campus. Thank you for being here. We hear this term. Why don't you first of all give the cliff notes version of what sub prime lending is and then what its impact is.

Jay Butler:
Sub prime refers to the borrowers. They don't qualify for the top product being offered by a particular person, either because they have bad credit record or low FICA score; they don't have enough income, et cetera. So they are sub prime. We've always had sub prime borrowers, just that they became a bigger focus the last three to four years of this particular housing markets.

Cary Pfeffer:
The reason they became a bigger focus is with some lower interest rates and sort of creative ways to get those folks into homes that they might not normally be able to?

Jay Butler:
Yeah. The home prices going up. So because of higher home prices you had to get people in there. People were stretching because high appreciation they figure will stretch a year or two, then we'll be okay. And also we were beginning to sort of run out of the good people so you had to keep -- if you wanted to make your profits and other things you kept bringing in more and more people and they had to expand your offerings to the sub prime people.

Cary Pfeffer:
So now there's a big focus on those mortgage firms that made those loans and what the ultimate impact would be. There's concern on Wall Street and there certainly would be concern here in Arizona, correct?

Jay Butler:
Sure. Because again because Arizona tends to be a lower income, high minority base, home prices considerably went up in the last couple of years. So you would have a lot of focus. And not only is it focusing now on the sub prime but it's beginning to focus in all those other things. So you're bringing in the no doc type loans and the non traditional things. Interest only, et cetera. So you're expanding that examination because of what's happening in the sub prime market.

Cary Pfeffer:
And what kind of an impact might it have here in Arizona? In other words, we hear about folks who are falling behind. Are we talking about a big boost in an already -- in an inventory that's already pretty substantial here in the state?

Jay Butler:
Probably not. The economy is good. So those are going to hold together. Really what you're going to have is the investor home is probably one that's in trouble. And that's why it's up. You're going to have some people who either lose jobs or their income just doesn't keep up. And that is going to be a group. Probably not right now a big thing. Because the economy is still very good. But if the economy takes a hit, then this begins to expand rapidly.

Cary Pfeffer:
Exactly. I said there's also concern on Wall Street. There's concern there because of the sort of the underpinnings of some of these firms.

Jay Butler:
Right. There's a conference today looking at derivatives and financial securities. The whole thing was on the containment of the sub prime risk conditions.

Cary Pfeffer:
And what might we see if this becomes a big enough issue or, as you mentioned, if there's another hiccup in the economy and then this stuff becomes even more prominent, what are we likely to see? Will there be attempts at sort of reforms and changing some of those rules? What direction might that go?

Jay Butler:
Of course we'll all try to reform and change the rules. It's hard to figure out how to change the rules. Are you going to say we're not going to lend to this group of people? Well, they're minorities, low income. Don't they have certain rights? Might be that you more structure the package. You're not going to give them 1\% interest and watch it rise. You're going to structure that sort of thing. Now the issue is going to be, do we get into the predatory financing issue where these people were sort of forced into these sub prime loans. So it's probably going to narrow the market. But yet these people have housing rights, too. It's just sometimes they just got in over their heads.

Cary Pfeffer:
And there should be caution out there also on the part of some folks when they're dealing with -- when they're trying to make those decisions I guess, too.

Jay Butler:
Right. The idea, everybody got caught up in the hyper appreciation thing and they thought it was going to go on forever. It didn't and it never does.

Cary Pfeffer:
Anybody who's lived here long enough certainly appreciates that.

Jay Butler:
We can always hope.

Cary Pfeffer:
Exactly. And the reason we have to be concerned about the overall economy is if there's a glitch in the economy, it makes it harder for people to make those payments.

Jay Butler:
Right. Not only make the payments, but a lot of people are refinancing their homes to pay for automobiles, trips and other things. So that gets cut back. Also as the sub prime lenders lay off people in a couple instances go out of business, we begin to increase that group. And that group goes from earning very good money to basically zero. And so that's going to have some implications this thing. A lot of them are fairly young. They were into this group in their 20's and 30's because a lot of companies are hiring. And everybody is going to be looked at. If you're a even if you weren't in the sub prime they're going to look at seeing what you were doing and if you shouldn't have been doing it. And seeing what happens.

Cary Pfeffer:
We'll see what happens. A.S.U. economist Jay Butler thanks very much for being here.

Jay Butler:
Glad to be here.

Merry Lucero:
New figures from the census bureau show Maricopa County had the largest population increase of any county in the country since the 2000 census. And you may vote on an initiative next year that would prohibit drivers from using cell phones while they are on the road. Those stories and more on the journalists roundtable Friday at 7:00 on Horizon.

Cary Pfeffer:
Always an interesting time here every Friday for the journalists roundtable. I'm Cary Pfeffer. Thanks very much for watching. Good night.

U.S. Attorneys


  • Eight U.S. Attorneys were recently fired by the Bush Administration in a controversial manner. ASU Law Professor Paul Bender will talk about how U.S. Attorneys are appointed and the firings of the eight attorneys.
Guests:
  • John McComish - State representative
  • Glenn Hamer - Arizona Chamber of Commerce
  • Paul Bender - Professor, College of Law, Arizona State University
Category: Law

View Transcript
Cary Pfeffer:
The state has to fire an illegal immigrant.
Arizona's Paul Charlton was one of eight U.S. attorneys fired. We'll talk with an A.S.U. law professor about the firing. And sometimes home lending is starting to cause problems. An economist will bring us up-to-date. All that coming up on Horizon.

Announcer:
Horizon is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Cary Pfeffer:
Good evening and welcome to Horizon. I'm Cary Pfeffer. The sixth annual Cesar Chavez luncheon took place today at the phoenix convention center. This year's event paid tribute to Arizona women who helped Chavez fight for the civil rights of workers during the 1960's and 70's. Dolores Huerta was the keynote speaker.

Dolores Huerta:
Have always did things not very comfortable but right for people. He called on people to do things that always made them go. The women we're recognizing today were out there doing marches, picket, many times on the negotiating table, doing the strikes and the things they wanted to do. I want to mention to you that you Arizonans are really going to be given a separate honor in addition to the one that you have by being the native state of Cesar Chavez. There is a bill in the congress right now, and it has the support of both the senate and the House of Representatives. This bill is by congresswoman Hilda Solis. This bill it looks like it will pass. They'll have the first hearings next week. Because every place that was significant to Cesar's life will be named a historical site. How about that? [applause]

Cary Pfeffer:
You can learn more about the life of Cesar Chavez on Horizonte tonight right after Horizon.

Cary Pfeffer:
It was an ironic day last Thursday at the state capitol. The same day the house passed a measure on employer sanctions it had to fire a worker who was hired illegally. We'll hear more about the employer sanctions bill. But first mike Sauceda tells us about the worker who was fired.

Mike Sauceda:
The housekeeper was found out to be an illegal immigrant during a routine check of all social security numbers by the state department of administration using social security verification.

Barret Marson:
We had a member of our cleaning crew. He was hired in December. At that time we submitted his name as we do to all employees to the department of administration to do a social security verification check, which all state agencies do. At some point, D.O.A. did a social security verification and it came back that this particular gentleman's social security number was not -- did not match the name that social security had on file. So his -- a human resources manager went to him and said, you have eight days to clear this up. At some point eventually later he went to his supervisor and said he was not going to be able to clear it up because he was an illegal. So really what this shows is that social security verification works.

Mike Sauceda:
That employee was fired the same day a bill was passed by the house that would create sanctions for employers who knowingly hire illegal immigrants.

Barret Marson:
That bill requires every employer to sign an affidavit saying that they do not knowingly employ an illegal immigrant. The penalty for not -- for violating that is rather stiff. But again, you're signifying that you do not knowingly hire and knowingly employ an illegal. So we are counting on businesses to first of all know that their employees are illegal and are in this country improperly and allowed to work and that being honest when they're filling out these affidavits. It also provides money for the attorney general and county attorneys to investigate and to prosecute these case.

Mike Sauceda:
The house did notify officials once it was discovered the worker was illegal.

Barret Marson:
This young man did confess, you're right. But that's not necessarily all employees. Some people may say, I don't want to go through that hassle. They may not be illegal. They may just have a bad -- there may be some other reason why they don't fit. It may not be because they're illegal. However, the house did inform law enforcement of this particular man's situation. And I don't know where that is.

Cary Pfeffer:
And here now to discuss the employer sanctions bill is state representative John McComish and Glenn Hamer of the Arizona chamber of commerce. Thanks to both of you for being here.

John McComish:
Thank you for having us.

Cary Pfeffer:
And representative McComish, let's start with you in talking about the sanctions that would be part of this bill as it stands now. We just heard that basically the idea is if you're an employer you can't knowingly have somebody who is here illegally on your payroll.

John McComish:
Correct.

Cary Pfeffer:
When someone is found to be in violation, as it stands now, what kind of sanctions would they face?

John McComish:
As we saw, all employers will be required to sign an affidavit saying that they are not going to, and that's to get around the federal pre-emption aspect of it. Once that happens, if an employer is found to have knowingly hired an illegal or illegals, then that employer will be fined $2,500 minimum.

Cary Pfeffer:
Per person or per violation? Per violation.

John McComish:
Yes. Exactly. Per violation. Not per person. And then there's a progressive steps for if they're found the first time to be guilty, to have a violation, second time, third time it gets progressively worse. First time is $2,500. Then it increases to 5,000 and 10,000. That's a minimum fine. And in addition to that, if they're found guilty, if they are found guilty it would be a class 6 felony. And there's provisions in the law for an additional fine should the courts see that that was fit. And there's also provision for jail time if the court saw that that was fit. And there's a provision for loss of a license. And as I say, it depends on first time, second time, third time. Each one gets a little more progressively painful.

Cary Pfeffer:
And the idea is to provide some leeway on the judge's part so if someone is sort of a serial violator or is sort of in a wanton way ignored the law that they can step in.

John McComish:
Yes. Before bringing this bill to a vote, we had many conversations with stakeholders such as Glenn Hamer and the Arizona chamber. And the one thing that kept coming back from them to us was that there needs to be due process in this. And that's what we tried to bill in so that it could be fair.

Cary Pfeffer:
And Glenn, let's get your take on the bill as it stands now. And your organization's take on where it stands.

Glenn Hamer:
Well, I would first like to say that we're very fortunate that we have a very talented and responsive leadership team in the state house, as well as the state senate.

Cary Pfeffer:
We'll see how far that gets you. [laughter] No I'm just kidding

Glenn Hamer:
Well, I say that with all sincerity. The Arizona chamber's point and the position of the vast majority of the chambers in the state is that we absolutely want to see the immigration problems fixed. We know that Arizona is disproportionately impacted. There are lots of costs associated with this to hospitals, to education, incarceration, to taxpayers. At the end of the day we really need the federal government to step up and to provide a comprehensive solution. And a big part of that effort will require putting together a bulletproof worker verification system. That simply does not exist today.

Cary Pfeffer:
And your feeling is that the state is -- it's not possible for the state to have that kind of a system as far as you're concerned? We have to have sort of a federal layer of this federal layer.

Glenn Hamer:
We do need a federal layer. And I believe that all the state efforts reflect that in one way or another, through either reference to the federal basic pilot program or through the current process which employers verify the status.

Cary Pfeffer:
Right.

Glenn Hamer:
One additional point I will make is that I am not here to defend employers who knowingly break the law. They should be punished. And in fact there are already very stiff federal penalties. And the current administration, the Bush administration has really stepped up the prosecution of those employers who are knowingly hiring illegal aliens.

Cary Pfeffer:
But you know also that the general populace when you do a public opinion poll say there has to be something done. So state lawmakers are saying -- and quickly I want you to respond on that, they feel like they need to do something.

Glenn Hamer:
Well when you take a look at the vote, it was certainly -- it was a very bipartisan, a very strong vote. So that -- what you've just stated is a fact. But our point is that there are just certain activities that we'll need to get fixed on the federal level for us to achieve the solution that we all would like to see happen.

Cary Pfeffer:
And if you were to predict and look at sort of where this bill will end up, what's your sense of --

John McComish:
I believe that it has to go to the senate. It's passed through the house. And it will go through the normal processes, senate committee hearing, be heard on the floor. And I believe it will pass out of the senate. Then of course it will have to go to the governor. And I believe the governor will sign it. I just wanted to comment briefly on what Glenn said. In the house we agree that federal government needs to step up and be more diligent in their efforts. But in the mean while, we have to respond to the needs of the state. And we believe that we have.

Cary Pfeffer:
Representative McComish, appreciate your being here as well as Glenn Hamer, appreciate your being here from the chamber of commerce.

Cary Pfeffer:
Controversy grows concerning the firing of eight U.S. attorneys, a group of which included our own U.S. attorney in Arizona, Paul Charlton. Jose Cardenas spoke with A.S.U. professor Paul Bender about the firings and about how U.S. attorneys are appointed.

Jose Cardenas:
Dean Bender explain for us the process by which U.S. attorneys are initially selected.

Paul Bender:
U.S. attorneys are presidential appointments so they have to be confirmed by the senate. The typical way, same way judges are selected, the president nominates and the senate has to consent to the appointment.

Jose Cardenas:
What happens when you have a vacancy for whatever reason?

Paul Bender:
Well, ordinarily before the patriot act was passed, what would happen would be the same thing that happens when a judge retires. The president nominates somebody new and that person gets confirmed as well. There's an interim period, usually, when the president has been allowed to name an interim person for whatever time it takes. I think there's a limit that interim can't serve for more than about six months. And if nobody is picked to replace, then I think the chief judge of the district gets to pick. But ordinarily it's basically the same as other federal high-level federal offices are. Except that unlike a judge, they don't have life tenure.

Jose Cardenas:
Now that's the way it was before the patriot act. But there were some changes made by it. What can you tell me?

Paul Bender:
I'm not sure exactly the details. But I believe the patriot act provided that when a vacancy would arise with U.S. attorney generals the president or the attorney general could fill a vacancy indefinitely, without appointing a permanent replacement. That means that if somebody was fired or resigned you could pick a replacement and you never have to take that replacement before the senate for confirmation, which would avoid the senate asking questions about why did you fire the other person.

Jose Cardenas:
Or even inquiring about the qualifications of the new person.

Paul Bender:
That's right.

Jose Cardenas:
As I understand, this was an amendment to the patriot act. It wasn't part of the original legislation.

Paul Bender:
I think that's true and I'm not positive. One of the how is of congress has now changed that and I think that is going to be changed so that in the future it's going to be like it always was. The president nominates. He can appoint an interim person but just for the interim.

Jose Cardenas:
Now how much of that was a factor in the initial -- what seems to have been the initial proposal in the bush administration to replace all of the U.S. attorneys after the November elections?

Paul Bender:
Yeah. That's been done by some presidents and not by others. I think Clinton replaced them all.

Jose Cardenas:
You mean at the beginning --

Paul Bender:
At the beginning of his first term when he was first elected. That's sort of like picking your own cabinet. Not exactly because I think prosecutors should be more independent. But a president is thought to have the right when he comes in --

Jose Cardenas:
More typical of a new administration.

Paul Bender:
It doesn't always happen. I think you shouldn't really fire them all. If you have good people who are willing to stay on, you should keep them. But it's perfectly ordinary for the president to ask them all to leave and to pick a new slate. What's different about this case is that it's not ordinary to change them for political reasons or to change them really for any reason other than incompetence. It's really important that prosecutors have independence from the political system. And so the tradition has been that once they're appointed they stay for that first term of the president, maybe they would resign at the end of the first term. But you don't fire them because they're not doing politically the things you want them to do.

Jose Cardenas:
What about just firing them because you want to change them? I mean, theoretically they serve at the pleasure of the president and the president can have no reason for replacing them.

Paul Bender:
Constitutionally the president has the right to replace them whenever the president wants. But tradition has been that those jobs are above politics and are more like judges than they are like cabinet members. Because they have so much power as prosecutors. Prosecutors have your life in their hands in lots of ways. They can subject you to a process that's going to ruin your life, even if you're ultimately acquitted. So the tradition has been in the justice department, in the office that I worked in the solicitor general's office, if the solicitor general is picked by the president but no one would think that president should call up the solicitor general and ask him what position he's taking on a particular case and try to influence that position for political reasons. And the same thing with the U.S. attorneys. They're supposed to be independent of politics. So you shouldn't fire them. And presidents have not traditionally fired them unless they were incompetent.

Jose Cardenas:
What about for policy reasons? Every new president has a different priority or the attorney general has an area of emphasis that at least initially the suggestion in the case of the U.S. attorney for Arizona was that concerns were that he was feeling a different policy in death penalty cases for example. Isn't that prerogative of the executive?

Paul Bender:
It's the prerogative. Normally you wouldn't think that should happen. If president picks miss own people at the beginning it would be people who would go along with his policies. But I suppose if the person refuses to go along with a general policy you could fire him. That in a sense to me is incompetence because the president has the right to set general policies. Let's emphasize antitrust cases, let's emphasize immigration cases. But that's a lot different from, we want you to prosecute somebody or we don't want you to prosecute somebody for political reasons. And you won't do it so we're going to get rid of you. That's the kind of thing that shouldn't happen. Whether that happened here or not, I don't know. The suggestions are that it has. And the fact that white house keeps giving different reasons for doing this raises the doubt about whether that's happened. And if that has happened, that would really be bad.

Jose Cardenas:
And I should emphasize that we don't know -- as a matter of fact I'm not sure there's any evidence that Paul Charlton refused to follow a particular policy. He clearly did have some different views and expressed them apparently. It looks like we have a different constitutional crisis brewing related to this. And that is the president's apparent refusal to allow members of his team, Harriet Myers, Karl Rove, to testify under oath. What do you see happening there?

Paul Bender:
Or even, as I understand it, to testify publicly and to testify on the record. He wants it to be done informally, in private and without any oath or record. And the senate and the house want to subpoena people if they won't testify voluntarily on the record in public under oath. That could raise a constitutional problem of whether the congress has the power to require people who work for the president to come and testify before them under oath. Congress normally has the power to require anybody to testify about something that's relevant to them. But presidents have in the past asserted executive privilege. And the executive privilege has been recognized as a general matter by the Supreme Court. But it has not really spelled out the exact contours of it. In the most famous case involving President Nixon's refusal to turn over materials to the prosecutor, the court held that he did not have executive privilege to do that because it was so important, the material was relevant to a criminal prosecution. Beyond that the court has just said that there is a general executive privilege which can't be violated just randomly or for no good reason. But I think it's suggested that if there's a good reason, it can be violated. So nobody knows exactly if Karl Rove refuses to respond to the subpoena and congress holds him in contempt for doing, that congress would have the right to hold him in contempt. I think it's a weak case for executive privilege in the sense that what they want to ask Rove about or those other people is not a conversation with the president. That would be the most likely thing to be privileged. But a conversation with the attorney general or with other people in the justice department would not.

Jose Cardenas:
Which would not be privileged?

Paul Bender:
I don't think so. The strongest case of privilege is advice given directly to the president.

Jose Cardenas:
Dean Bender we'll have to leave it there. I'm sure there'll be more as this issue develops. Thanks, you for joining us.

Paul Bender:
Thank you, Jose.

Cary Pfeffer:
Finally tonight there are concerns that home foreclosures could increase because of increasing home payments due to sub prime lending. Lending methods such as giving adjustable rate mortgages to some homeowners who might not normally qualify could cause payments to go up hundreds of dollars. And here to discuss that and how the economy here in Arizona might be impacted is Jay Butler, the director of the Arizona real estate at A.S.U.'s polytechnic campus. Thank you for being here. We hear this term. Why don't you first of all give the cliff notes version of what sub prime lending is and then what its impact is.

Jay Butler:
Sub prime refers to the borrowers. They don't qualify for the top product being offered by a particular person, either because they have bad credit record or low FICA score; they don't have enough income, et cetera. So they are sub prime. We've always had sub prime borrowers, just that they became a bigger focus the last three to four years of this particular housing markets.

Cary Pfeffer:
The reason they became a bigger focus is with some lower interest rates and sort of creative ways to get those folks into homes that they might not normally be able to?

Jay Butler:
Yeah. The home prices going up. So because of higher home prices you had to get people in there. People were stretching because high appreciation they figure will stretch a year or two, then we'll be okay. And also we were beginning to sort of run out of the good people so you had to keep -- if you wanted to make your profits and other things you kept bringing in more and more people and they had to expand your offerings to the sub prime people.

Cary Pfeffer:
So now there's a big focus on those mortgage firms that made those loans and what the ultimate impact would be. There's concern on Wall Street and there certainly would be concern here in Arizona, correct?

Jay Butler:
Sure. Because again because Arizona tends to be a lower income, high minority base, home prices considerably went up in the last couple of years. So you would have a lot of focus. And not only is it focusing now on the sub prime but it's beginning to focus in all those other things. So you're bringing in the no doc type loans and the non traditional things. Interest only, et cetera. So you're expanding that examination because of what's happening in the sub prime market.

Cary Pfeffer:
And what kind of an impact might it have here in Arizona? In other words, we hear about folks who are falling behind. Are we talking about a big boost in an already -- in an inventory that's already pretty substantial here in the state?

Jay Butler:
Probably not. The economy is good. So those are going to hold together. Really what you're going to have is the investor home is probably one that's in trouble. And that's why it's up. You're going to have some people who either lose jobs or their income just doesn't keep up. And that is going to be a group. Probably not right now a big thing. Because the economy is still very good. But if the economy takes a hit, then this begins to expand rapidly.

Cary Pfeffer:
Exactly. I said there's also concern on Wall Street. There's concern there because of the sort of the underpinnings of some of these firms.

Jay Butler:
Right. There's a conference today looking at derivatives and financial securities. The whole thing was on the containment of the sub prime risk conditions.

Cary Pfeffer:
And what might we see if this becomes a big enough issue or, as you mentioned, if there's another hiccup in the economy and then this stuff becomes even more prominent, what are we likely to see? Will there be attempts at sort of reforms and changing some of those rules? What direction might that go?

Jay Butler:
Of course we'll all try to reform and change the rules. It's hard to figure out how to change the rules. Are you going to say we're not going to lend to this group of people? Well, they're minorities, low income. Don't they have certain rights? Might be that you more structure the package. You're not going to give them 1\% interest and watch it rise. You're going to structure that sort of thing. Now the issue is going to be, do we get into the predatory financing issue where these people were sort of forced into these sub prime loans. So it's probably going to narrow the market. But yet these people have housing rights, too. It's just sometimes they just got in over their heads.

Cary Pfeffer:
And there should be caution out there also on the part of some folks when they're dealing with -- when they're trying to make those decisions I guess, too.

Jay Butler:
Right. The idea, everybody got caught up in the hyper appreciation thing and they thought it was going to go on forever. It didn't and it never does.

Cary Pfeffer:
Anybody who's lived here long enough certainly appreciates that.

Jay Butler:
We can always hope.

Cary Pfeffer:
Exactly. And the reason we have to be concerned about the overall economy is if there's a glitch in the economy, it makes it harder for people to make those payments.

Jay Butler:
Right. Not only make the payments, but a lot of people are refinancing their homes to pay for automobiles, trips and other things. So that gets cut back. Also as the sub prime lenders lay off people in a couple instances go out of business, we begin to increase that group. And that group goes from earning very good money to basically zero. And so that's going to have some implications this thing. A lot of them are fairly young. They were into this group in their 20's and 30's because a lot of companies are hiring. And everybody is going to be looked at. If you're a even if you weren't in the sub prime they're going to look at seeing what you were doing and if you shouldn't have been doing it. And seeing what happens.

Cary Pfeffer:
We'll see what happens. A.S.U. economist Jay Butler thanks very much for being here.

Jay Butler:
Glad to be here.

Merry Lucero:
New figures from the census bureau show Maricopa County had the largest population increase of any county in the country since the 2000 census. And you may vote on an initiative next year that would prohibit drivers from using cell phones while they are on the road. Those stories and more on the journalists roundtable Friday at 7:00 on Horizon.

Cary Pfeffer:
Always an interesting time here every Friday for the journalists roundtable. I'm Cary Pfeffer. Thanks very much for watching. Good night.

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