Horizon, Host: Ted Simons

October 24, 2007


Host: Ted Simons

Arizona's Immigration Strategy Part 3


  • We’ll examine a lawsuit filed in U.S. District Court that challenges the constitutionality of Arizona’s employer-sanctions law.
Guests:
  • Howard Fischer - Capitol Media Services
  • David Selden - Attorney, Ballard Spahr
  • Tom Donohue - President and CEO, U.S. Chamber of Commerce
Category: Immigration

View Transcript
>>Ted Simons:
Tonight on Horizon, new developments related to the Phoenix New Times investigation by the county attorney's office; the legal challenges to Arizona's employer sanctions law; and we'll hear what the president of the US Chamber of Commerce has to say about illegal immigration. Those stories are next on Horizon.

>>Announcer:
Horizon is made possible through the contributions of the friends of Eight, members of your Arizona PBS station. Thank you. Horizon is made possible through the contributions of the Friends of Eight, members of your Arizona PBS station. Thank you.

>>Ted Simons:
Good evening, I'm Ted Simons, welcome to Horizon. A Maricopa County superior court judge held a hearing today to decide whether to unseal secret grand jury documents related to the Phoenix New Times investigation. Here to tell us more is Howie Fischer of Capitol Media Services. Howie, good to have you here. What did the judge decide today?

>>Howard Fischer:
Not surprisingly she said, look, we already know what's in the subpoena because the New Times published it. We heard what happened at some of the hearings involving Dennis Wilenchik and the New Times lawyers. The attorney general yanked the plug. So there's no reason to keep this secret. She ordered it all unsealed. We're still pouring through it at this hour to find what's out there. So far no surprises. We know how the investigation started and we know how it ended.

>>Ted Simons:
Nothing lurking in the weeds so far?

>>Howard Fischer:
Not so far. There are questions as to whether the New Times attorney threatened to punch Dennis Wilenchik, the special prosecutor for the county. I think it's great fodder. As a political writer I love this as part of the ongoing saga, if you will, in many parts. But I don't think we're going to find any surprises in there that we really didn't know about.

>>Ted Simons:
The alleged attempted get-together between the special prosecutor and the judge in the case, we've heard a little bit of he said-she said or they said information here. Any more information come to light?

>>Howard Fischer:
The problem is we don't know because it was outside the scope of the hearing what was on Dennis Wilenchik 's mind when through an intermediary he contacted judge Baca. His argument was, I wasn't here to talk ex parte about the grand jury investigation but about the county attorney's office and judiciary. Because judge Baca is presiding criminal judge. All that is part of the record. Obviously judge Baca had such problems with the call that she called for this public -- not quite public but open court session to discuss all the specifics there. That's part of the transcript. But again, everything else in terms of who wanted to do what, I don't know that we'll ever know that because that's in people's mind.

>>Ted Simons:
Any response today from the county attorney's office?

>>Howard Fischer:
Well, the county attorney said he had no problem with the release of the documents. Again I think he thought, hey, the investigation is over, there's not much more to say.

>>Ted Simons:
I wanted to bring that up. The county attorney very upset over another media story, this time involving a link with Channel 12 and/or "Arizona Republic" linking to documents regarding his home address?

>>Howard Fischer:
Bill Reznik, a Channel 12 reporter used to work for the republic was trying to do a story saying, look, I know this has been gussed up. But you can go to documents by the Maricopa county recorder's office and find Joe Arpaio's and Andy Thomas' financial disclosure form. And these forms which all elected officials have to file list their home address. There's nothing wrong with the story. What may have been wrong with the story is in the online version there's the actual link. You click on this, here's the sheriff's home address, here's the county attorney's home address. He reacted very violently. He said people are threatening him, his family. Now the county taxpayers will have to pay for armed guards to protect him and his four children. The republic which actually runs the website for both them and channel 12 agreed to take down the site, said they never intended to hurt anyone. But it was just simply a question of illustrating the fact that you can find out anything on the Internet. I looked up your home address; in fact we're going to publish it later.

>>Ted Simons:
Thanks, Howie. Really appreciate that. Since we're all fussing and fighting with each other, let's keep it going. Now we find out the Attorney General, Terry Goddard, has written a letter to county attorney Andrew Thomas suggesting the county attorney now should somehow change this case over to someone else because as we can all see, there are questions. What's this fight all about?

>>Howard Fischer:
Well, the segue from the last fight is that Terry Goddard sent a letter to Andy Thomas and said, look, you ended the grand jury investigation in the New Times because of questions of politics and bad feelings. And even Dennis Wilenchik 's involvement. Now, clearly Andy Thomas ran against Terry Goddard in 2002 for attorney general. Terry won, Andy lost. Terry is now saying, well, you still have bad feelings about that so you shouldn't be investigating me. This investigation is of another issue which has to do with whether Terry Goddard gave unfairly lenient treatment to former state treasurer Dave Peterson and allowed him to plead out to a count of filing false financial statements in terms of his involvement with some ethics trainings programs. And he ended up getting probation and being allowed to resign. Obviously the sheriff and the county attorney think that something was wrong, because the treasurer's office transferred money which was actually due to the attorney general's office on a settlement of a case to see how complicated this gets? And so that started that investigation. And then the sheriff writes back to Terry Goddard today in a two-paragraph letter, basically saying, you're impeding my investigation of you, and you should step aside as attorney general. You know, folks, I can't make this stuff up.

>>Ted Simons:
I was going to say. In looking at the letter that Goddard sent, this is pretty strong stuff, words like highly inaccurate, utterly false, preposterous, offensive, politically motivated. This is strong stuff.

>>Howard Fischer:
Well, politics? Surely you jest. But the problem with Terry's letter and to a certain extent with Joe's response is, you're always going to have people elected politically investigating other people. How do you take politics out of it? Theoretically the Maricopa County attorney's office could turn it over to another county where you don't have the same direct involvement. But all county attorneys are elected. Maybe they don't have quite the same feelings about it. But this comes down to the same thing that when Andy Thomas wanted to disqualify all the judges because they hated him. Not that Andy is a little paranoid but you always are going to have feelings. Can prosecutors and judges put aside their feelings? I don't know. We are so deep in each others' faces on this one; I don't know that anything that comes out of any of these investigations we're going to trust.

>>Ted Simons:
I was going to say, the public has to look at all this and said can you folks get along and get the guys off the streets?

>>Howard Fischer:
Not interested in getting the bad guys off the streets but these guys off the street.

>>Ted Simons:
Howie, thank you so much. I'm sure more of this will be coming as the days go by.

>>Howard Fischer:
Exactly. We'll talk about it more on Friday.

>>>Ted Simons:
We continue our series, "Arizona's Immigration Strategy" with a look at the lawsuit challenging Arizona's new employer sanctions law. We'll talk with an attorney who filed the suit. But first, David Majure outlines some of the legal claims.

>>David Majure:
Illegal immigrants have long been a part of Arizona's state work force. But the State looks to end the practice by penalizing employers who do so. House Bill 2779 signed by the governor in July, punishes employers who knowingly hire unauthorized workers. Their business licenses can be suspended for a first offense and revoked for a second violation. And under the new law that goes into effect January 1st, employers must verify the legal status of all new hires using the federal government's E-Verify system. But a lawsuit has been filed in U.S. District court to stop the law from taking effect. Led by the Arizona Contractors' Association, about a dozen business groups are behind the legal action that names Arizona's governor and attorney general as defendants. The challenge to Arizona's employer sanctions law is based on several claims, among them that law is unconstitutional because it interferes with and is pre-empted by federal immigration law. There's a claim that it violates an employer's right to due process guaranteed by the Arizona and U.S. Constitutions. Another claim says it illegally regulates interstate commerce because it affects workers who may be hired and work in states other than Arizona. The lawsuit also argues that the separation of powers doctrine of Arizona's constitution is violated because the executive branch has little if any discretion in enforcing the law. And it claims that there's a violation of the U.S. Constitution's fourth amendment protection against unreasonable search and seizure. This has to do with the requiring employers to use the e. verify system to check the status of workers. By doing so they must allow periodic site inspections by government workers.

>>Ted Simons:
Joining me to talk about the employer sanctions lawsuit is David Selden, an attorney with Ballard Spahr who represents the plaintiffs in the case. We invited state's attorneys to join us but they declined. David good to have you.

>>David Selden:
Thank You.

>>Ted Simons:
A law that punishes businesses for knowingly hiring undocumented workers. Why is that a bad thing?

>>David Selden:
It's bad for all of us. Because first, it violates the Constitution. And we never want to violate the Constitution and pass any laws. Those are the rights that our founding fathers gave all of us. It is not a fair law. Because what it does, it provides that the attorney general or the county attorney must make a mandatory investigation every time somebody complains. Somebody could drive through the drive-through line at the nearest restaurant, call us the county attorney and say, hey, I think there's somebody who's unauthorized working here. And then boom, the machinery of government goes into play. So they do an investigation, the law says that investigation is to send a computer check to the government and get a computer check back and that's all. And the computer response back from the federal government is a determination under Arizona law of whether or not that person is authorized to work. Even if that's a mistake, that is a final determination of a person's status, and that's the only evidence that will be allowed in court about whether that person is lawful or not. So it could be a woman who's changed her name because of marriage or divorce, or any one of a number of other mistakes. And that person would be deemed to be unauthorized to work.

>>Ted Simons:
So the verification process in general is something that you're concerned with.

>>David Selden:
Absolutely. It's unfair. The federal government has a system that has due process that allows for hearings, that allows for evidence to be brought. This new state law does not allow that. It provides for a hearing in state court in which the only evidence is a computer check with the federal government in a database that is known to be not accurate.

>>Ted Simons:
Critics could argue, though, that by fight this are you not basically giving employers the right to break the law?

>>David Selden:
No. There are already laws on the books that provide procedures that employers must follow in making hiring decisions. And there's 27 documents that unfortunately are easily forged documents that employers are by law mandated to accept. And employers can follow the federal law, accept the documents that federal law provides, they must accept and hire people. And there are penalties already on the books under federal law for any violations. What this law does is it heaps state penalties on top of the federal penalties for matters that may not be a violation of federal law. Because different procedures are used.

>>Ted Simons:
I want to get real quickly. We have a graphic I want to show you, an argument on the other side. In the state's response to the lawsuit, the state argues that "Federal immigration law does not pre-empt employer sanctions because Congress intentionally carved out a licensing exception for state legislation." don't states have the authority to sanction through licensing as they see fit?

>>David Selden:
States have the right to make licensing decisions to deny licenses to people who have been found to have violated the law. And that would include criminal penalties, things of that nature. But what that means is if somebody is found to have violated a federal law, a state can make a licensing decision based upon that federal violation. But the state cannot come in and enact its entirely new state employment immigration law on top of the federal law and sanction people for violations of the state law. And that's what this does. Because the federal constitution gives certain powers to the federal government: the power to declare war, the power to make treaties, to conduct foreign relations and to establish a uniform system of naturalization. That's what the constitution says. And just because the federal system is broken doesn't give the state the right to come in and take over.

>>Ted Simons:
So basically what you see is Congress saying that immigration is a federal concern, supersedes what a state might want to do.

>>David Selden:
Absolutely. The state couldn't come in -- Arizona couldn't come in and say, federal government you're not doing such a great job in Iraq. We think we're going to start legislating the rules that will apply to Arizona soldiers over in Iraq. They must wear body armor all the times. Must ride in Humvees if they're armored and serve one tour of duty. That is pre-empted.

>>Ted Simons:
We're talking licensing on a state level.

>>David Selden:
A state can make licensing decisions on a state level based upon a company that has already been found to have been in violation of federal law in the federal system with federal due process. They can't come in and act a kangaroo court procedure in Arizona law that says we're going to find you in violation of Arizona law, not federal law, Arizona law, based upon a computer piece of paper from the federal government.

>>Ted Simons:
We have initiatives that are in the pipeline right now, a couple of them. We might even see more. Who knows? Would you file suit against these initiatives?

>>David Selden:
The state law that has already been passed is clearly unconstitutional. The initiative being circulated by the Don Goldwater group is unconstitutional on steroids. If our lawsuit is successful, then certainly the sponsors of that initiative will know that their initiative is unconstitutional as well and they should drop it. It's a waste of time and money.

>>Ted Simons:
Have you gotten to the point where your group would offer its own initiative?

>>David Selden:
No. Our objective is to get some direction from the court. Under our system of government, it's the court that is the protector of constitutional rights. And what makes sense is to go forward with the lawsuit, get clear direction from the court, which the court has indicated the court will do. It will decide this case before January 1. And it will be a final decision on the merits of all issues, all claims in this case. With the benefit of the court's wisdom, then it's time for the legislature to go back to the drawing boards and try and pay attention to the constitution when they're writing laws.

>>Ted Simsons:
And still trying to get a gauge of how involved your group is going to get as we go further down the road. Would you work against lawmakers who wind up on the other side of this issue?

>>David Selden:
There are 12 different plaintiffs. So some of them are more politically engaged than others. So I certainly can't speak for what each of the 12 groups will do. They all are intelligent, thoughtful people, and I'm sure they'll be participating in the political process to the extent that it's consistent with their agenda.

>>Ted Simons:
You're mentioning before the first of the year this thing should get decided one way or the other. You have a date for us?

>>David Selden:
It's not been set but it appears November 14 is the most likely date for that. But we just filed some papers with the court and the court about an hour and a half ago, that made that suggestion. All the parties have agreed to that date. So we're hoping that court will be accommodating with the schedule.

>>Ted Simons:
And real quickly, no one wants to ask the coach what he's going to do if he loses. But if it comes out the wrong way, you have a plan b?

>>David Selden:
Pray for the economy of Arizona. Because we are shooting ourselves in the foot, chopping off our right arm it. Would be economic chaos on the state if we're going to deprive our state economy of the workers that our economy needs to function.

>>Ted Simons:
All right. Thank you so much for joining us. We appreciate it.

>>David Selden:
Thank you.

>>Ted Simons:
All right. U.S. Chamber of commerce has weighed in on the immigration issue. Recently the president and CEO of the organization, Tom Donohue, spoke before the Arizona chamber of commerce. Larry Lemmons caught up with him at the Pointe Hilton Squaw Peak Resort.

>>Larry Lemmons:
Mr. Donohue, as of January 1st the employer sanctions law will come into effect here in Arizona. The U.S. Chamber of commerce is one of the plaintiffs in a lawsuit against that. What does the chamber not like about it?

>>Tom Donohue:
Well, there are a couple of things wrong with the law. First of all, it is not the role of state governments or local governments to create rules on immigration. These are the responsibilities of the federal government, which has just been proven in a major court case in Pennsylvania. On the other hand, everybody understands a certain level of frustration in border states and other places where people are trying to get some help and they're not getting it from the federal government. The federal government needs to pass a comprehensive, reasonable immigration law that protects our borders and provides a visitor worker program so that we can run our economy, finds a rational way to take care of the 12 million people that are here in an undocumented basis running our economy now, and they have to stop the rhetoric and slow down and recognize that we're going to retire 77 million people in the next couple of years, and we're going to need a lot of services and somebody's going to have to provide them.

>>Larry Lemmons:
You said the federal government needs to do something. But of course, in the last session the senate tried to pass an immigration reform law. It was supported by the president, Senators McCain and Kyl and Kennedy were onboard for it. Of the Republican Party basically defeated it. How difficult do you think it's going to be specifically within the Republican Party, for example, to get something like that passed?

>>Tom Donohue:
Larry, if you wait just -- if you were to wait say three to four years, which I hope we don't, it won't be difficult at all. Because when you have to go and take your mother-in-law home from the nursing home and care for her in your own home, when we leave 50, 60\% of the food in the fields in California and Arizona and other places, when we're not able to continue to attract a tremendous tourism benefits that this state wants because you don't have the one in eight of every worker in this country that works in the tourism business, you don't have those people here to welcome your visitors, then we're going to have a real problem. And then the congressmen and the senators are going to go back to Washington and say, time out. I've got to protect my city and my state. I've got to protect my economy. I've got to provide fundamental services and you better get smart. Now, can we be smart enough to do that sooner before we get there? I think so.

>>Larry Lemmons:
Do you have any sort of strategy, for example, to offset again what I think is a groundswell of animosity that it seems some people have against illegal immigrants?

>>Tom Donohue:
I don't know that I think it's animosity. I think it's lack of understanding about what the issues are. And there are a lot of things you can do. First of all, you can begin to talk -- employers can talk to their workers. People can talk to their friends. We need to explain what's going on in this society. We create far more jobs than we have people to fill. Now, what should we do? Should we not create those jobs? Who's going to provide all the services that your family and my family demand? Who's going to take care of the elderly that are living longer and longer and longer? Who's going to provide for the types of workers we need to protect our basic industries? And when people begin to understand that, then they're going to make some different decisions. In the meantime, what our argument is, the federal government has a responsibility, but some of the ways they're approaching it are wrong. This idea that social security system will send a letter to your employer and say that your documents don't match -- maybe there was a hyphen in your name or a misspelling in their records. And they have 9 million errors a year. So what is a company to do? We'd have to fire you. I don't think that's a smart idea. I think we need something that works a little better than that. So while we're suing those guys in California, we're saying, this is simple. Everybody get together, get a rational, thoughtful program that protects our borders and provides the workers we need for an orderly society. And the people that are screaming and yelling on the side? We're always going to have some of those people. But common sense has to prevail with the people who hold responsibility.

>>Larry Lemmons:
You mentioned in the speech in there about there being maybe about 4.3\% unemployment and that you were saying it's not a matter of whether or not you can get rid of all the illegal immigrants and there will be people to take those jobs. You're saying those people don't exist.

>>Tom Donohue:
They don't exist. If you have 4.3\% global unemployment, national unemployment, in some places much, much less than that, the other 2.5, 3\% people are structurally, functionally unemployable. Can't employ them. They're in prison, they're sick, they're incompetent or whatever. We always try to find ways to help those folks. But they're not going to affiliate jobs we're trying to fill. And guess what? It's going to get worse. Because we have more demand for more jobs. We have fewer people coming into the workplace. We have 77 million people getting ready to retire. Seems to me we ought to have a better plan. Because it's going to get very uncomfortable.

>>Larry Lemmons:
You told a funny story about how there are Americans who are buying land in Mexico, growing crops. There they have a ready labor supply. And then actually exporting those crops or importing, if you will, back into the country.

>>Tom Donohue:
These are Americans. They're entrepreneurs. So you have California farmers. They're sitting there saying, well, we're going to leave the food in the field here. We can't plant it, we can't take it out of the ground. So what do we do? These are entrepreneurs. These are Americans, greatest people we have to offer. So they go down to Mexico, rent a bunch of land down there, go down there, plant crops down there, hire the all the workers they need down there. Get it all done there, crate it all back up and bring it back to the United States. Well, you know, that's a good example of some of the things that are going to happen if we don't figure out how to get enough workers.

>>Larry Lemmons:
What's the strategy for the US Chamber of Commerce in the near future in dealing with this issue in light of the presidential elections, that sort of thing?

>>Tom Donohue:
Got to have two strategies, one's a long-term. I told you in three or four years it will be easier. In the short-term you have to see if you can get enough sentiment to take another try at an omnibus bill or have to do the small parts one at a time. You have to do about each section, visas for high tech workers, agricultural workers on a temporary basis so we don't leave the crops in the field. We have to do something about season all workers so your community can welcome all the tourists and snow birders who come down here, out here to enjoy the weather.

>>Larry Lemmons:
Tom Donohue, thanks very much for talking to us on Horizon.

>>Tom Donohue:
Thank you.

>>Mike Sauceda:
A new employer sanctions law outlaws knowingly hiring illegal immigrants. We'll hear from an Arizona county attorney on how the law might be enforced and learn about the sanctions. Also find out about two initiatives that might be on the ballot that would create another employer sanctions law. That's Thursday at 7:00 on Horizon.

>>Ted Simons:
That's it. Thank you for joining us on this Wednesday evening here on Horizon. I'm Ted Simons. Have a good night.

Phoenix New Times Investigation


  • An update on a judge’s decision to unseal secret grand-jury documents related to the Phoenix New Times Investigation by the Maricopa County Attorney’s Office.
Guests:
  • Howard Fischer - Capitol Media Services
  • David Selden - Attorney, Ballard Spahr
  • Tom Donohue - President and CEO, U.S. Chamber of Commerce
Category: Law

View Transcript
>>Ted Simons:
Tonight on Horizon, new developments related to the Phoenix New Times investigation by the county attorney's office; the legal challenges to Arizona's employer sanctions law; and we'll hear what the president of the US Chamber of Commerce has to say about illegal immigration. Those stories are next on Horizon.

>>Announcer:
Horizon is made possible through the contributions of the friends of Eight, members of your Arizona PBS station. Thank you. Horizon is made possible through the contributions of the Friends of Eight, members of your Arizona PBS station. Thank you.

>>Ted Simons:
Good evening, I'm Ted Simons, welcome to Horizon. A Maricopa County superior court judge held a hearing today to decide whether to unseal secret grand jury documents related to the Phoenix New Times investigation. Here to tell us more is Howie Fischer of Capitol Media Services. Howie, good to have you here. What did the judge decide today?

>>Howard Fischer:
Not surprisingly she said, look, we already know what's in the subpoena because the New Times published it. We heard what happened at some of the hearings involving Dennis Wilenchik and the New Times lawyers. The attorney general yanked the plug. So there's no reason to keep this secret. She ordered it all unsealed. We're still pouring through it at this hour to find what's out there. So far no surprises. We know how the investigation started and we know how it ended.

>>Ted Simons:
Nothing lurking in the weeds so far?

>>Howard Fischer:
Not so far. There are questions as to whether the New Times attorney threatened to punch Dennis Wilenchik, the special prosecutor for the county. I think it's great fodder. As a political writer I love this as part of the ongoing saga, if you will, in many parts. But I don't think we're going to find any surprises in there that we really didn't know about.

>>Ted Simons:
The alleged attempted get-together between the special prosecutor and the judge in the case, we've heard a little bit of he said-she said or they said information here. Any more information come to light?

>>Howard Fischer:
The problem is we don't know because it was outside the scope of the hearing what was on Dennis Wilenchik 's mind when through an intermediary he contacted judge Baca. His argument was, I wasn't here to talk ex parte about the grand jury investigation but about the county attorney's office and judiciary. Because judge Baca is presiding criminal judge. All that is part of the record. Obviously judge Baca had such problems with the call that she called for this public -- not quite public but open court session to discuss all the specifics there. That's part of the transcript. But again, everything else in terms of who wanted to do what, I don't know that we'll ever know that because that's in people's mind.

>>Ted Simons:
Any response today from the county attorney's office?

>>Howard Fischer:
Well, the county attorney said he had no problem with the release of the documents. Again I think he thought, hey, the investigation is over, there's not much more to say.

>>Ted Simons:
I wanted to bring that up. The county attorney very upset over another media story, this time involving a link with Channel 12 and/or "Arizona Republic" linking to documents regarding his home address?

>>Howard Fischer:
Bill Reznik, a Channel 12 reporter used to work for the republic was trying to do a story saying, look, I know this has been gussed up. But you can go to documents by the Maricopa county recorder's office and find Joe Arpaio's and Andy Thomas' financial disclosure form. And these forms which all elected officials have to file list their home address. There's nothing wrong with the story. What may have been wrong with the story is in the online version there's the actual link. You click on this, here's the sheriff's home address, here's the county attorney's home address. He reacted very violently. He said people are threatening him, his family. Now the county taxpayers will have to pay for armed guards to protect him and his four children. The republic which actually runs the website for both them and channel 12 agreed to take down the site, said they never intended to hurt anyone. But it was just simply a question of illustrating the fact that you can find out anything on the Internet. I looked up your home address; in fact we're going to publish it later.

>>Ted Simons:
Thanks, Howie. Really appreciate that. Since we're all fussing and fighting with each other, let's keep it going. Now we find out the Attorney General, Terry Goddard, has written a letter to county attorney Andrew Thomas suggesting the county attorney now should somehow change this case over to someone else because as we can all see, there are questions. What's this fight all about?

>>Howard Fischer:
Well, the segue from the last fight is that Terry Goddard sent a letter to Andy Thomas and said, look, you ended the grand jury investigation in the New Times because of questions of politics and bad feelings. And even Dennis Wilenchik 's involvement. Now, clearly Andy Thomas ran against Terry Goddard in 2002 for attorney general. Terry won, Andy lost. Terry is now saying, well, you still have bad feelings about that so you shouldn't be investigating me. This investigation is of another issue which has to do with whether Terry Goddard gave unfairly lenient treatment to former state treasurer Dave Peterson and allowed him to plead out to a count of filing false financial statements in terms of his involvement with some ethics trainings programs. And he ended up getting probation and being allowed to resign. Obviously the sheriff and the county attorney think that something was wrong, because the treasurer's office transferred money which was actually due to the attorney general's office on a settlement of a case to see how complicated this gets? And so that started that investigation. And then the sheriff writes back to Terry Goddard today in a two-paragraph letter, basically saying, you're impeding my investigation of you, and you should step aside as attorney general. You know, folks, I can't make this stuff up.

>>Ted Simons:
I was going to say. In looking at the letter that Goddard sent, this is pretty strong stuff, words like highly inaccurate, utterly false, preposterous, offensive, politically motivated. This is strong stuff.

>>Howard Fischer:
Well, politics? Surely you jest. But the problem with Terry's letter and to a certain extent with Joe's response is, you're always going to have people elected politically investigating other people. How do you take politics out of it? Theoretically the Maricopa County attorney's office could turn it over to another county where you don't have the same direct involvement. But all county attorneys are elected. Maybe they don't have quite the same feelings about it. But this comes down to the same thing that when Andy Thomas wanted to disqualify all the judges because they hated him. Not that Andy is a little paranoid but you always are going to have feelings. Can prosecutors and judges put aside their feelings? I don't know. We are so deep in each others' faces on this one; I don't know that anything that comes out of any of these investigations we're going to trust.

>>Ted Simons:
I was going to say, the public has to look at all this and said can you folks get along and get the guys off the streets?

>>Howard Fischer:
Not interested in getting the bad guys off the streets but these guys off the street.

>>Ted Simons:
Howie, thank you so much. I'm sure more of this will be coming as the days go by.

>>Howard Fischer:
Exactly. We'll talk about it more on Friday.

>>>Ted Simons:
We continue our series, "Arizona's Immigration Strategy" with a look at the lawsuit challenging Arizona's new employer sanctions law. We'll talk with an attorney who filed the suit. But first, David Majure outlines some of the legal claims.

>>David Majure:
Illegal immigrants have long been a part of Arizona's state work force. But the State looks to end the practice by penalizing employers who do so. House Bill 2779 signed by the governor in July, punishes employers who knowingly hire unauthorized workers. Their business licenses can be suspended for a first offense and revoked for a second violation. And under the new law that goes into effect January 1st, employers must verify the legal status of all new hires using the federal government's E-Verify system. But a lawsuit has been filed in U.S. District court to stop the law from taking effect. Led by the Arizona Contractors' Association, about a dozen business groups are behind the legal action that names Arizona's governor and attorney general as defendants. The challenge to Arizona's employer sanctions law is based on several claims, among them that law is unconstitutional because it interferes with and is pre-empted by federal immigration law. There's a claim that it violates an employer's right to due process guaranteed by the Arizona and U.S. Constitutions. Another claim says it illegally regulates interstate commerce because it affects workers who may be hired and work in states other than Arizona. The lawsuit also argues that the separation of powers doctrine of Arizona's constitution is violated because the executive branch has little if any discretion in enforcing the law. And it claims that there's a violation of the U.S. Constitution's fourth amendment protection against unreasonable search and seizure. This has to do with the requiring employers to use the e. verify system to check the status of workers. By doing so they must allow periodic site inspections by government workers.

>>Ted Simons:
Joining me to talk about the employer sanctions lawsuit is David Selden, an attorney with Ballard Spahr who represents the plaintiffs in the case. We invited state's attorneys to join us but they declined. David good to have you.

>>David Selden:
Thank You.

>>Ted Simons:
A law that punishes businesses for knowingly hiring undocumented workers. Why is that a bad thing?

>>David Selden:
It's bad for all of us. Because first, it violates the Constitution. And we never want to violate the Constitution and pass any laws. Those are the rights that our founding fathers gave all of us. It is not a fair law. Because what it does, it provides that the attorney general or the county attorney must make a mandatory investigation every time somebody complains. Somebody could drive through the drive-through line at the nearest restaurant, call us the county attorney and say, hey, I think there's somebody who's unauthorized working here. And then boom, the machinery of government goes into play. So they do an investigation, the law says that investigation is to send a computer check to the government and get a computer check back and that's all. And the computer response back from the federal government is a determination under Arizona law of whether or not that person is authorized to work. Even if that's a mistake, that is a final determination of a person's status, and that's the only evidence that will be allowed in court about whether that person is lawful or not. So it could be a woman who's changed her name because of marriage or divorce, or any one of a number of other mistakes. And that person would be deemed to be unauthorized to work.

>>Ted Simons:
So the verification process in general is something that you're concerned with.

>>David Selden:
Absolutely. It's unfair. The federal government has a system that has due process that allows for hearings, that allows for evidence to be brought. This new state law does not allow that. It provides for a hearing in state court in which the only evidence is a computer check with the federal government in a database that is known to be not accurate.

>>Ted Simons:
Critics could argue, though, that by fight this are you not basically giving employers the right to break the law?

>>David Selden:
No. There are already laws on the books that provide procedures that employers must follow in making hiring decisions. And there's 27 documents that unfortunately are easily forged documents that employers are by law mandated to accept. And employers can follow the federal law, accept the documents that federal law provides, they must accept and hire people. And there are penalties already on the books under federal law for any violations. What this law does is it heaps state penalties on top of the federal penalties for matters that may not be a violation of federal law. Because different procedures are used.

>>Ted Simons:
I want to get real quickly. We have a graphic I want to show you, an argument on the other side. In the state's response to the lawsuit, the state argues that "Federal immigration law does not pre-empt employer sanctions because Congress intentionally carved out a licensing exception for state legislation." don't states have the authority to sanction through licensing as they see fit?

>>David Selden:
States have the right to make licensing decisions to deny licenses to people who have been found to have violated the law. And that would include criminal penalties, things of that nature. But what that means is if somebody is found to have violated a federal law, a state can make a licensing decision based upon that federal violation. But the state cannot come in and enact its entirely new state employment immigration law on top of the federal law and sanction people for violations of the state law. And that's what this does. Because the federal constitution gives certain powers to the federal government: the power to declare war, the power to make treaties, to conduct foreign relations and to establish a uniform system of naturalization. That's what the constitution says. And just because the federal system is broken doesn't give the state the right to come in and take over.

>>Ted Simons:
So basically what you see is Congress saying that immigration is a federal concern, supersedes what a state might want to do.

>>David Selden:
Absolutely. The state couldn't come in -- Arizona couldn't come in and say, federal government you're not doing such a great job in Iraq. We think we're going to start legislating the rules that will apply to Arizona soldiers over in Iraq. They must wear body armor all the times. Must ride in Humvees if they're armored and serve one tour of duty. That is pre-empted.

>>Ted Simons:
We're talking licensing on a state level.

>>David Selden:
A state can make licensing decisions on a state level based upon a company that has already been found to have been in violation of federal law in the federal system with federal due process. They can't come in and act a kangaroo court procedure in Arizona law that says we're going to find you in violation of Arizona law, not federal law, Arizona law, based upon a computer piece of paper from the federal government.

>>Ted Simons:
We have initiatives that are in the pipeline right now, a couple of them. We might even see more. Who knows? Would you file suit against these initiatives?

>>David Selden:
The state law that has already been passed is clearly unconstitutional. The initiative being circulated by the Don Goldwater group is unconstitutional on steroids. If our lawsuit is successful, then certainly the sponsors of that initiative will know that their initiative is unconstitutional as well and they should drop it. It's a waste of time and money.

>>Ted Simons:
Have you gotten to the point where your group would offer its own initiative?

>>David Selden:
No. Our objective is to get some direction from the court. Under our system of government, it's the court that is the protector of constitutional rights. And what makes sense is to go forward with the lawsuit, get clear direction from the court, which the court has indicated the court will do. It will decide this case before January 1. And it will be a final decision on the merits of all issues, all claims in this case. With the benefit of the court's wisdom, then it's time for the legislature to go back to the drawing boards and try and pay attention to the constitution when they're writing laws.

>>Ted Simsons:
And still trying to get a gauge of how involved your group is going to get as we go further down the road. Would you work against lawmakers who wind up on the other side of this issue?

>>David Selden:
There are 12 different plaintiffs. So some of them are more politically engaged than others. So I certainly can't speak for what each of the 12 groups will do. They all are intelligent, thoughtful people, and I'm sure they'll be participating in the political process to the extent that it's consistent with their agenda.

>>Ted Simons:
You're mentioning before the first of the year this thing should get decided one way or the other. You have a date for us?

>>David Selden:
It's not been set but it appears November 14 is the most likely date for that. But we just filed some papers with the court and the court about an hour and a half ago, that made that suggestion. All the parties have agreed to that date. So we're hoping that court will be accommodating with the schedule.

>>Ted Simons:
And real quickly, no one wants to ask the coach what he's going to do if he loses. But if it comes out the wrong way, you have a plan b?

>>David Selden:
Pray for the economy of Arizona. Because we are shooting ourselves in the foot, chopping off our right arm it. Would be economic chaos on the state if we're going to deprive our state economy of the workers that our economy needs to function.

>>Ted Simons:
All right. Thank you so much for joining us. We appreciate it.

>>David Selden:
Thank you.

>>Ted Simons:
All right. U.S. Chamber of commerce has weighed in on the immigration issue. Recently the president and CEO of the organization, Tom Donohue, spoke before the Arizona chamber of commerce. Larry Lemmons caught up with him at the Pointe Hilton Squaw Peak Resort.

>>Larry Lemmons:
Mr. Donohue, as of January 1st the employer sanctions law will come into effect here in Arizona. The U.S. Chamber of commerce is one of the plaintiffs in a lawsuit against that. What does the chamber not like about it?

>>Tom Donohue:
Well, there are a couple of things wrong with the law. First of all, it is not the role of state governments or local governments to create rules on immigration. These are the responsibilities of the federal government, which has just been proven in a major court case in Pennsylvania. On the other hand, everybody understands a certain level of frustration in border states and other places where people are trying to get some help and they're not getting it from the federal government. The federal government needs to pass a comprehensive, reasonable immigration law that protects our borders and provides a visitor worker program so that we can run our economy, finds a rational way to take care of the 12 million people that are here in an undocumented basis running our economy now, and they have to stop the rhetoric and slow down and recognize that we're going to retire 77 million people in the next couple of years, and we're going to need a lot of services and somebody's going to have to provide them.

>>Larry Lemmons:
You said the federal government needs to do something. But of course, in the last session the senate tried to pass an immigration reform law. It was supported by the president, Senators McCain and Kyl and Kennedy were onboard for it. Of the Republican Party basically defeated it. How difficult do you think it's going to be specifically within the Republican Party, for example, to get something like that passed?

>>Tom Donohue:
Larry, if you wait just -- if you were to wait say three to four years, which I hope we don't, it won't be difficult at all. Because when you have to go and take your mother-in-law home from the nursing home and care for her in your own home, when we leave 50, 60\% of the food in the fields in California and Arizona and other places, when we're not able to continue to attract a tremendous tourism benefits that this state wants because you don't have the one in eight of every worker in this country that works in the tourism business, you don't have those people here to welcome your visitors, then we're going to have a real problem. And then the congressmen and the senators are going to go back to Washington and say, time out. I've got to protect my city and my state. I've got to protect my economy. I've got to provide fundamental services and you better get smart. Now, can we be smart enough to do that sooner before we get there? I think so.

>>Larry Lemmons:
Do you have any sort of strategy, for example, to offset again what I think is a groundswell of animosity that it seems some people have against illegal immigrants?

>>Tom Donohue:
I don't know that I think it's animosity. I think it's lack of understanding about what the issues are. And there are a lot of things you can do. First of all, you can begin to talk -- employers can talk to their workers. People can talk to their friends. We need to explain what's going on in this society. We create far more jobs than we have people to fill. Now, what should we do? Should we not create those jobs? Who's going to provide all the services that your family and my family demand? Who's going to take care of the elderly that are living longer and longer and longer? Who's going to provide for the types of workers we need to protect our basic industries? And when people begin to understand that, then they're going to make some different decisions. In the meantime, what our argument is, the federal government has a responsibility, but some of the ways they're approaching it are wrong. This idea that social security system will send a letter to your employer and say that your documents don't match -- maybe there was a hyphen in your name or a misspelling in their records. And they have 9 million errors a year. So what is a company to do? We'd have to fire you. I don't think that's a smart idea. I think we need something that works a little better than that. So while we're suing those guys in California, we're saying, this is simple. Everybody get together, get a rational, thoughtful program that protects our borders and provides the workers we need for an orderly society. And the people that are screaming and yelling on the side? We're always going to have some of those people. But common sense has to prevail with the people who hold responsibility.

>>Larry Lemmons:
You mentioned in the speech in there about there being maybe about 4.3\% unemployment and that you were saying it's not a matter of whether or not you can get rid of all the illegal immigrants and there will be people to take those jobs. You're saying those people don't exist.

>>Tom Donohue:
They don't exist. If you have 4.3\% global unemployment, national unemployment, in some places much, much less than that, the other 2.5, 3\% people are structurally, functionally unemployable. Can't employ them. They're in prison, they're sick, they're incompetent or whatever. We always try to find ways to help those folks. But they're not going to affiliate jobs we're trying to fill. And guess what? It's going to get worse. Because we have more demand for more jobs. We have fewer people coming into the workplace. We have 77 million people getting ready to retire. Seems to me we ought to have a better plan. Because it's going to get very uncomfortable.

>>Larry Lemmons:
You told a funny story about how there are Americans who are buying land in Mexico, growing crops. There they have a ready labor supply. And then actually exporting those crops or importing, if you will, back into the country.

>>Tom Donohue:
These are Americans. They're entrepreneurs. So you have California farmers. They're sitting there saying, well, we're going to leave the food in the field here. We can't plant it, we can't take it out of the ground. So what do we do? These are entrepreneurs. These are Americans, greatest people we have to offer. So they go down to Mexico, rent a bunch of land down there, go down there, plant crops down there, hire the all the workers they need down there. Get it all done there, crate it all back up and bring it back to the United States. Well, you know, that's a good example of some of the things that are going to happen if we don't figure out how to get enough workers.

>>Larry Lemmons:
What's the strategy for the US Chamber of Commerce in the near future in dealing with this issue in light of the presidential elections, that sort of thing?

>>Tom Donohue:
Got to have two strategies, one's a long-term. I told you in three or four years it will be easier. In the short-term you have to see if you can get enough sentiment to take another try at an omnibus bill or have to do the small parts one at a time. You have to do about each section, visas for high tech workers, agricultural workers on a temporary basis so we don't leave the crops in the field. We have to do something about season all workers so your community can welcome all the tourists and snow birders who come down here, out here to enjoy the weather.

>>Larry Lemmons:
Tom Donohue, thanks very much for talking to us on Horizon.

>>Tom Donohue:
Thank you.

>>Mike Sauceda:
A new employer sanctions law outlaws knowingly hiring illegal immigrants. We'll hear from an Arizona county attorney on how the law might be enforced and learn about the sanctions. Also find out about two initiatives that might be on the ballot that would create another employer sanctions law. That's Thursday at 7:00 on Horizon.

>>Ted Simons:
That's it. Thank you for joining us on this Wednesday evening here on Horizon. I'm Ted Simons. Have a good night.

Tom Donohue


  • HORIZON discusses immigration strategy with the president of the U.S. Chamber of Commerce.
Guests:
  • Howard Fischer - Capitol Media Services
  • David Selden - Attorney, Ballard Spahr
  • Tom Donohue - President and CEO, U.S. Chamber of Commerce
Category: Immigration

View Transcript
>>Ted Simons:
Tonight on Horizon, new developments related to the Phoenix New Times investigation by the county attorney's office; the legal challenges to Arizona's employer sanctions law; and we'll hear what the president of the US Chamber of Commerce has to say about illegal immigration. Those stories are next on Horizon.

>>Announcer:
Horizon is made possible through the contributions of the friends of Eight, members of your Arizona PBS station. Thank you. Horizon is made possible through the contributions of the Friends of Eight, members of your Arizona PBS station. Thank you.

>>Ted Simons:
Good evening, I'm Ted Simons, welcome to Horizon. A Maricopa County superior court judge held a hearing today to decide whether to unseal secret grand jury documents related to the Phoenix New Times investigation. Here to tell us more is Howie Fischer of Capitol Media Services. Howie, good to have you here. What did the judge decide today?

>>Howard Fischer:
Not surprisingly she said, look, we already know what's in the subpoena because the New Times published it. We heard what happened at some of the hearings involving Dennis Wilenchik and the New Times lawyers. The attorney general yanked the plug. So there's no reason to keep this secret. She ordered it all unsealed. We're still pouring through it at this hour to find what's out there. So far no surprises. We know how the investigation started and we know how it ended.

>>Ted Simons:
Nothing lurking in the weeds so far?

>>Howard Fischer:
Not so far. There are questions as to whether the New Times attorney threatened to punch Dennis Wilenchik, the special prosecutor for the county. I think it's great fodder. As a political writer I love this as part of the ongoing saga, if you will, in many parts. But I don't think we're going to find any surprises in there that we really didn't know about.

>>Ted Simons:
The alleged attempted get-together between the special prosecutor and the judge in the case, we've heard a little bit of he said-she said or they said information here. Any more information come to light?

>>Howard Fischer:
The problem is we don't know because it was outside the scope of the hearing what was on Dennis Wilenchik 's mind when through an intermediary he contacted judge Baca. His argument was, I wasn't here to talk ex parte about the grand jury investigation but about the county attorney's office and judiciary. Because judge Baca is presiding criminal judge. All that is part of the record. Obviously judge Baca had such problems with the call that she called for this public -- not quite public but open court session to discuss all the specifics there. That's part of the transcript. But again, everything else in terms of who wanted to do what, I don't know that we'll ever know that because that's in people's mind.

>>Ted Simons:
Any response today from the county attorney's office?

>>Howard Fischer:
Well, the county attorney said he had no problem with the release of the documents. Again I think he thought, hey, the investigation is over, there's not much more to say.

>>Ted Simons:
I wanted to bring that up. The county attorney very upset over another media story, this time involving a link with Channel 12 and/or "Arizona Republic" linking to documents regarding his home address?

>>Howard Fischer:
Bill Reznik, a Channel 12 reporter used to work for the republic was trying to do a story saying, look, I know this has been gussed up. But you can go to documents by the Maricopa county recorder's office and find Joe Arpaio's and Andy Thomas' financial disclosure form. And these forms which all elected officials have to file list their home address. There's nothing wrong with the story. What may have been wrong with the story is in the online version there's the actual link. You click on this, here's the sheriff's home address, here's the county attorney's home address. He reacted very violently. He said people are threatening him, his family. Now the county taxpayers will have to pay for armed guards to protect him and his four children. The republic which actually runs the website for both them and channel 12 agreed to take down the site, said they never intended to hurt anyone. But it was just simply a question of illustrating the fact that you can find out anything on the Internet. I looked up your home address; in fact we're going to publish it later.

>>Ted Simons:
Thanks, Howie. Really appreciate that. Since we're all fussing and fighting with each other, let's keep it going. Now we find out the Attorney General, Terry Goddard, has written a letter to county attorney Andrew Thomas suggesting the county attorney now should somehow change this case over to someone else because as we can all see, there are questions. What's this fight all about?

>>Howard Fischer:
Well, the segue from the last fight is that Terry Goddard sent a letter to Andy Thomas and said, look, you ended the grand jury investigation in the New Times because of questions of politics and bad feelings. And even Dennis Wilenchik 's involvement. Now, clearly Andy Thomas ran against Terry Goddard in 2002 for attorney general. Terry won, Andy lost. Terry is now saying, well, you still have bad feelings about that so you shouldn't be investigating me. This investigation is of another issue which has to do with whether Terry Goddard gave unfairly lenient treatment to former state treasurer Dave Peterson and allowed him to plead out to a count of filing false financial statements in terms of his involvement with some ethics trainings programs. And he ended up getting probation and being allowed to resign. Obviously the sheriff and the county attorney think that something was wrong, because the treasurer's office transferred money which was actually due to the attorney general's office on a settlement of a case to see how complicated this gets? And so that started that investigation. And then the sheriff writes back to Terry Goddard today in a two-paragraph letter, basically saying, you're impeding my investigation of you, and you should step aside as attorney general. You know, folks, I can't make this stuff up.

>>Ted Simons:
I was going to say. In looking at the letter that Goddard sent, this is pretty strong stuff, words like highly inaccurate, utterly false, preposterous, offensive, politically motivated. This is strong stuff.

>>Howard Fischer:
Well, politics? Surely you jest. But the problem with Terry's letter and to a certain extent with Joe's response is, you're always going to have people elected politically investigating other people. How do you take politics out of it? Theoretically the Maricopa County attorney's office could turn it over to another county where you don't have the same direct involvement. But all county attorneys are elected. Maybe they don't have quite the same feelings about it. But this comes down to the same thing that when Andy Thomas wanted to disqualify all the judges because they hated him. Not that Andy is a little paranoid but you always are going to have feelings. Can prosecutors and judges put aside their feelings? I don't know. We are so deep in each others' faces on this one; I don't know that anything that comes out of any of these investigations we're going to trust.

>>Ted Simons:
I was going to say, the public has to look at all this and said can you folks get along and get the guys off the streets?

>>Howard Fischer:
Not interested in getting the bad guys off the streets but these guys off the street.

>>Ted Simons:
Howie, thank you so much. I'm sure more of this will be coming as the days go by.

>>Howard Fischer:
Exactly. We'll talk about it more on Friday.

>>>Ted Simons:
We continue our series, "Arizona's Immigration Strategy" with a look at the lawsuit challenging Arizona's new employer sanctions law. We'll talk with an attorney who filed the suit. But first, David Majure outlines some of the legal claims.

>>David Majure:
Illegal immigrants have long been a part of Arizona's state work force. But the State looks to end the practice by penalizing employers who do so. House Bill 2779 signed by the governor in July, punishes employers who knowingly hire unauthorized workers. Their business licenses can be suspended for a first offense and revoked for a second violation. And under the new law that goes into effect January 1st, employers must verify the legal status of all new hires using the federal government's E-Verify system. But a lawsuit has been filed in U.S. District court to stop the law from taking effect. Led by the Arizona Contractors' Association, about a dozen business groups are behind the legal action that names Arizona's governor and attorney general as defendants. The challenge to Arizona's employer sanctions law is based on several claims, among them that law is unconstitutional because it interferes with and is pre-empted by federal immigration law. There's a claim that it violates an employer's right to due process guaranteed by the Arizona and U.S. Constitutions. Another claim says it illegally regulates interstate commerce because it affects workers who may be hired and work in states other than Arizona. The lawsuit also argues that the separation of powers doctrine of Arizona's constitution is violated because the executive branch has little if any discretion in enforcing the law. And it claims that there's a violation of the U.S. Constitution's fourth amendment protection against unreasonable search and seizure. This has to do with the requiring employers to use the e. verify system to check the status of workers. By doing so they must allow periodic site inspections by government workers.

>>Ted Simons:
Joining me to talk about the employer sanctions lawsuit is David Selden, an attorney with Ballard Spahr who represents the plaintiffs in the case. We invited state's attorneys to join us but they declined. David good to have you.

>>David Selden:
Thank You.

>>Ted Simons:
A law that punishes businesses for knowingly hiring undocumented workers. Why is that a bad thing?

>>David Selden:
It's bad for all of us. Because first, it violates the Constitution. And we never want to violate the Constitution and pass any laws. Those are the rights that our founding fathers gave all of us. It is not a fair law. Because what it does, it provides that the attorney general or the county attorney must make a mandatory investigation every time somebody complains. Somebody could drive through the drive-through line at the nearest restaurant, call us the county attorney and say, hey, I think there's somebody who's unauthorized working here. And then boom, the machinery of government goes into play. So they do an investigation, the law says that investigation is to send a computer check to the government and get a computer check back and that's all. And the computer response back from the federal government is a determination under Arizona law of whether or not that person is authorized to work. Even if that's a mistake, that is a final determination of a person's status, and that's the only evidence that will be allowed in court about whether that person is lawful or not. So it could be a woman who's changed her name because of marriage or divorce, or any one of a number of other mistakes. And that person would be deemed to be unauthorized to work.

>>Ted Simons:
So the verification process in general is something that you're concerned with.

>>David Selden:
Absolutely. It's unfair. The federal government has a system that has due process that allows for hearings, that allows for evidence to be brought. This new state law does not allow that. It provides for a hearing in state court in which the only evidence is a computer check with the federal government in a database that is known to be not accurate.

>>Ted Simons:
Critics could argue, though, that by fight this are you not basically giving employers the right to break the law?

>>David Selden:
No. There are already laws on the books that provide procedures that employers must follow in making hiring decisions. And there's 27 documents that unfortunately are easily forged documents that employers are by law mandated to accept. And employers can follow the federal law, accept the documents that federal law provides, they must accept and hire people. And there are penalties already on the books under federal law for any violations. What this law does is it heaps state penalties on top of the federal penalties for matters that may not be a violation of federal law. Because different procedures are used.

>>Ted Simons:
I want to get real quickly. We have a graphic I want to show you, an argument on the other side. In the state's response to the lawsuit, the state argues that "Federal immigration law does not pre-empt employer sanctions because Congress intentionally carved out a licensing exception for state legislation." don't states have the authority to sanction through licensing as they see fit?

>>David Selden:
States have the right to make licensing decisions to deny licenses to people who have been found to have violated the law. And that would include criminal penalties, things of that nature. But what that means is if somebody is found to have violated a federal law, a state can make a licensing decision based upon that federal violation. But the state cannot come in and enact its entirely new state employment immigration law on top of the federal law and sanction people for violations of the state law. And that's what this does. Because the federal constitution gives certain powers to the federal government: the power to declare war, the power to make treaties, to conduct foreign relations and to establish a uniform system of naturalization. That's what the constitution says. And just because the federal system is broken doesn't give the state the right to come in and take over.

>>Ted Simons:
So basically what you see is Congress saying that immigration is a federal concern, supersedes what a state might want to do.

>>David Selden:
Absolutely. The state couldn't come in -- Arizona couldn't come in and say, federal government you're not doing such a great job in Iraq. We think we're going to start legislating the rules that will apply to Arizona soldiers over in Iraq. They must wear body armor all the times. Must ride in Humvees if they're armored and serve one tour of duty. That is pre-empted.

>>Ted Simons:
We're talking licensing on a state level.

>>David Selden:
A state can make licensing decisions on a state level based upon a company that has already been found to have been in violation of federal law in the federal system with federal due process. They can't come in and act a kangaroo court procedure in Arizona law that says we're going to find you in violation of Arizona law, not federal law, Arizona law, based upon a computer piece of paper from the federal government.

>>Ted Simons:
We have initiatives that are in the pipeline right now, a couple of them. We might even see more. Who knows? Would you file suit against these initiatives?

>>David Selden:
The state law that has already been passed is clearly unconstitutional. The initiative being circulated by the Don Goldwater group is unconstitutional on steroids. If our lawsuit is successful, then certainly the sponsors of that initiative will know that their initiative is unconstitutional as well and they should drop it. It's a waste of time and money.

>>Ted Simons:
Have you gotten to the point where your group would offer its own initiative?

>>David Selden:
No. Our objective is to get some direction from the court. Under our system of government, it's the court that is the protector of constitutional rights. And what makes sense is to go forward with the lawsuit, get clear direction from the court, which the court has indicated the court will do. It will decide this case before January 1. And it will be a final decision on the merits of all issues, all claims in this case. With the benefit of the court's wisdom, then it's time for the legislature to go back to the drawing boards and try and pay attention to the constitution when they're writing laws.

>>Ted Simsons:
And still trying to get a gauge of how involved your group is going to get as we go further down the road. Would you work against lawmakers who wind up on the other side of this issue?

>>David Selden:
There are 12 different plaintiffs. So some of them are more politically engaged than others. So I certainly can't speak for what each of the 12 groups will do. They all are intelligent, thoughtful people, and I'm sure they'll be participating in the political process to the extent that it's consistent with their agenda.

>>Ted Simons:
You're mentioning before the first of the year this thing should get decided one way or the other. You have a date for us?

>>David Selden:
It's not been set but it appears November 14 is the most likely date for that. But we just filed some papers with the court and the court about an hour and a half ago, that made that suggestion. All the parties have agreed to that date. So we're hoping that court will be accommodating with the schedule.

>>Ted Simons:
And real quickly, no one wants to ask the coach what he's going to do if he loses. But if it comes out the wrong way, you have a plan b?

>>David Selden:
Pray for the economy of Arizona. Because we are shooting ourselves in the foot, chopping off our right arm it. Would be economic chaos on the state if we're going to deprive our state economy of the workers that our economy needs to function.

>>Ted Simons:
All right. Thank you so much for joining us. We appreciate it.

>>David Selden:
Thank you.

>>Ted Simons:
All right. U.S. Chamber of commerce has weighed in on the immigration issue. Recently the president and CEO of the organization, Tom Donohue, spoke before the Arizona chamber of commerce. Larry Lemmons caught up with him at the Pointe Hilton Squaw Peak Resort.

>>Larry Lemmons:
Mr. Donohue, as of January 1st the employer sanctions law will come into effect here in Arizona. The U.S. Chamber of commerce is one of the plaintiffs in a lawsuit against that. What does the chamber not like about it?

>>Tom Donohue:
Well, there are a couple of things wrong with the law. First of all, it is not the role of state governments or local governments to create rules on immigration. These are the responsibilities of the federal government, which has just been proven in a major court case in Pennsylvania. On the other hand, everybody understands a certain level of frustration in border states and other places where people are trying to get some help and they're not getting it from the federal government. The federal government needs to pass a comprehensive, reasonable immigration law that protects our borders and provides a visitor worker program so that we can run our economy, finds a rational way to take care of the 12 million people that are here in an undocumented basis running our economy now, and they have to stop the rhetoric and slow down and recognize that we're going to retire 77 million people in the next couple of years, and we're going to need a lot of services and somebody's going to have to provide them.

>>Larry Lemmons:
You said the federal government needs to do something. But of course, in the last session the senate tried to pass an immigration reform law. It was supported by the president, Senators McCain and Kyl and Kennedy were onboard for it. Of the Republican Party basically defeated it. How difficult do you think it's going to be specifically within the Republican Party, for example, to get something like that passed?

>>Tom Donohue:
Larry, if you wait just -- if you were to wait say three to four years, which I hope we don't, it won't be difficult at all. Because when you have to go and take your mother-in-law home from the nursing home and care for her in your own home, when we leave 50, 60\% of the food in the fields in California and Arizona and other places, when we're not able to continue to attract a tremendous tourism benefits that this state wants because you don't have the one in eight of every worker in this country that works in the tourism business, you don't have those people here to welcome your visitors, then we're going to have a real problem. And then the congressmen and the senators are going to go back to Washington and say, time out. I've got to protect my city and my state. I've got to protect my economy. I've got to provide fundamental services and you better get smart. Now, can we be smart enough to do that sooner before we get there? I think so.

>>Larry Lemmons:
Do you have any sort of strategy, for example, to offset again what I think is a groundswell of animosity that it seems some people have against illegal immigrants?

>>Tom Donohue:
I don't know that I think it's animosity. I think it's lack of understanding about what the issues are. And there are a lot of things you can do. First of all, you can begin to talk -- employers can talk to their workers. People can talk to their friends. We need to explain what's going on in this society. We create far more jobs than we have people to fill. Now, what should we do? Should we not create those jobs? Who's going to provide all the services that your family and my family demand? Who's going to take care of the elderly that are living longer and longer and longer? Who's going to provide for the types of workers we need to protect our basic industries? And when people begin to understand that, then they're going to make some different decisions. In the meantime, what our argument is, the federal government has a responsibility, but some of the ways they're approaching it are wrong. This idea that social security system will send a letter to your employer and say that your documents don't match -- maybe there was a hyphen in your name or a misspelling in their records. And they have 9 million errors a year. So what is a company to do? We'd have to fire you. I don't think that's a smart idea. I think we need something that works a little better than that. So while we're suing those guys in California, we're saying, this is simple. Everybody get together, get a rational, thoughtful program that protects our borders and provides the workers we need for an orderly society. And the people that are screaming and yelling on the side? We're always going to have some of those people. But common sense has to prevail with the people who hold responsibility.

>>Larry Lemmons:
You mentioned in the speech in there about there being maybe about 4.3\% unemployment and that you were saying it's not a matter of whether or not you can get rid of all the illegal immigrants and there will be people to take those jobs. You're saying those people don't exist.

>>Tom Donohue:
They don't exist. If you have 4.3\% global unemployment, national unemployment, in some places much, much less than that, the other 2.5, 3\% people are structurally, functionally unemployable. Can't employ them. They're in prison, they're sick, they're incompetent or whatever. We always try to find ways to help those folks. But they're not going to affiliate jobs we're trying to fill. And guess what? It's going to get worse. Because we have more demand for more jobs. We have fewer people coming into the workplace. We have 77 million people getting ready to retire. Seems to me we ought to have a better plan. Because it's going to get very uncomfortable.

>>Larry Lemmons:
You told a funny story about how there are Americans who are buying land in Mexico, growing crops. There they have a ready labor supply. And then actually exporting those crops or importing, if you will, back into the country.

>>Tom Donohue:
These are Americans. They're entrepreneurs. So you have California farmers. They're sitting there saying, well, we're going to leave the food in the field here. We can't plant it, we can't take it out of the ground. So what do we do? These are entrepreneurs. These are Americans, greatest people we have to offer. So they go down to Mexico, rent a bunch of land down there, go down there, plant crops down there, hire the all the workers they need down there. Get it all done there, crate it all back up and bring it back to the United States. Well, you know, that's a good example of some of the things that are going to happen if we don't figure out how to get enough workers.

>>Larry Lemmons:
What's the strategy for the US Chamber of Commerce in the near future in dealing with this issue in light of the presidential elections, that sort of thing?

>>Tom Donohue:
Got to have two strategies, one's a long-term. I told you in three or four years it will be easier. In the short-term you have to see if you can get enough sentiment to take another try at an omnibus bill or have to do the small parts one at a time. You have to do about each section, visas for high tech workers, agricultural workers on a temporary basis so we don't leave the crops in the field. We have to do something about season all workers so your community can welcome all the tourists and snow birders who come down here, out here to enjoy the weather.

>>Larry Lemmons:
Tom Donohue, thanks very much for talking to us on Horizon.

>>Tom Donohue:
Thank you.

>>Mike Sauceda:
A new employer sanctions law outlaws knowingly hiring illegal immigrants. We'll hear from an Arizona county attorney on how the law might be enforced and learn about the sanctions. Also find out about two initiatives that might be on the ballot that would create another employer sanctions law. That's Thursday at 7:00 on Horizon.

>>Ted Simons:
That's it. Thank you for joining us on this Wednesday evening here on Horizon. I'm Ted Simons. Have a good night.

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