A federal judge told attorneys he was not inclined to grant a motion seeking to temporarily stop the Jan. 1 implementation of a law that penalizes businesses for hiring illegal immigrants.
U.S. District Judge Neil Wake told the attorneys in a Dec. 18 hearing he was “disposed to deny” a request for a temporary restraining order against the law. Wake also declined a request from the plaintiffs that he rule on the motion immediately, instead saying he will issue a written opinion on the matter by the end of the week.
Attorneys for business groups and Hispanic advocacy organizations said they will appeal immediately if Wake denies their request.
Wake said he did not favor granting the motion because the plaintiffs created the need for immediate relief by not amending a previous lawsuit to include the correct defendants, despite being notified the suit could be dismissed several months ago.
“You were put on the clearest notice in September,” Wake told the attorneys.
The attorneys argued the restraining order was necessary because the employer sanctions law requires all businesses to verify new hires after Jan. 1 through the federal government’s online E-Verify system.
Attorney Louis Moffa said there was no disputing the state cannot mandate use of a program that is otherwise voluntary, in conflict with federal law.
“That’s enough injury to warrant the court to enter an injunctive relief [against the law]…” he said.
In a Dec. 7 order dismissing a previous challenge to the sanctions law, Wake noted that Arizona employers will “sustain economic injury” by the law requiring use of the E-Verify system.
In the hearing, Wake also said he must consider the public’s interest of having the law go into effect before he rules whether the implementation should be delayed.
But Moffa said there would be more harm in allowing a law that violates constitutional rights to go into effect.
“Arizona hasn’t lived with this law for 200 years,” he said. “Another 30 or 60 days isn’t going to hurt the public interest.”
Wake also expressed concern for workers at or near the poverty line, saying they may be adversely affected by delaying the law. He characterized the employment of illegal immigrants as creating a “wage-depressed environment” that harms legal workers who compete with illegal workers for jobs.
“Unauthorized workers compete with people who just struggle with the bare necessities of life,” he said.
But David Selden, another attorney for the business groups, said after the hearing there’s no proof that the law’s implementation will suddenly boost wages.
“To say that there’s an impact on Arizona workers…that’s a stretch,” he said. “The Arizona labor market won’t be affected January 2 because of the E-Verify system.”
Wake also said he was troubled about the effect on businesses if he were to delay the law’s implementation because they have all been notified of the new law by the state. As a provision of the law, a notice sent to all businesses in October instructed them to sign up for the E-Verify system before January to comply with the law. Wake said businesses may not be aware of the requirement to sign up for the federal program if he grants the delay but later lifts it.
“I’m worried about this because there’s a lot of folks out there who don’t read the paper, don’t watch the news,” he said.
Although the law’s requirement that notice be sent to all businesses was met by the October mailing, Wake said a second mailing would be appropriate if he were to grant the restraining order and later lift it.
Tim Nelson, counsel for Gov. Janet Napolitano, said the Governor’s Office would also like a second notice to be sent to businesses in such a situation.
Solicitor General Mary O’Grady said a notice likely couldn’t be sent unless it was paid for by a bond funded by the plaintiffs in the lawsuit, as the Legislature only appropriated enough money for the statutorily required mailing.
Though Wake hasn’t issued a ruling on the restraining order, attorneys representing the state’s 15 county attorneys pledged to Wake they wouldn’t prosecute businesses who violated the law until Feb. 1.
A hearing for a preliminary injunction against the law is scheduled for Jan. 16.