The claim by the Arizona Contractors Association and Arizona Employers for Immigration Reform seeking to have H2779 declared unconstitutional cites seven specific violations of federal and Arizona law.
Here is a summary of the violations as alleged:
• Procedural due process (the suit alleges the law violates both the U.S. and Arizona constitutions): Government is prohibited by the 14th Amendment from depriving a person of property (in this case a business license) without due process of law, which has been defined to include the right to a hearing, the right to a definite statement of charges, the right to produce and examine witnesses at a hearing, and the right to a determination based on the evidence. None of these due process rights would be provided to Arizona employers under H2779.
• Substantive due process (the suit alleges the law violates both the U.S. and Arizona constitutions): Government is prohibited from arbitrarily and capriciously depriving a person of a fundamental right, specifically the right of an employer to associate with whomever it chooses.
• Commerce clause of the U.S. Constitution: H2779 “purports to and will regulate” interstate commerce, which is a power reserved to the federal government by the commerce clause of the Constitution. This claim arises because the bill is not restricted to employees who work exclusively in Arizona, who are hired exclusively in Arizona, or who reside exclusively in Arizona. The suit alleges an Arizona business could lose its license based on conduct that occurred wholly outside of Arizona and over which Arizona has no power to regulate.
• Supremacy clause of the U.S. Constitution: H2779 preempts federal law relating both to immigration policy and the criteria by which a person’s eligibility for employment is determined. The bill also makes unlawful an additional immigration-related employment practice that is not prohibited under federal law, specifically that of “intentionally” employing an illegal alien. Also the state does not have the authority to require employers to use the Basic Pilot Program, and any attempt to do so is pre-empted by federal law.
• Separation of powers of the Arizona Constitution: H2779 contains a mandate that executive branch agencies investigate every non-frivolous complaint it receives of alleged employment of illegal aliens, regardless of whether the complaint has merit and regardless of resources required for the executive to discharge its other duties.
The filing requests a preliminary and immediate injunction to enjoin the state from enforcing the bill.