BILL ANALYSIS Ó
AB 1544
Page A
Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 1544 (V. Manuel Perez) - As Proposed to be Amended: April
18, 2012
SUBJECT : Undocumented workers.
SUMMARY : Enacts the California Agricultural Jobs and Industry
Stabilization Act of 2012. Specifically, this bill :
1)Defines "employee" to mean an agricultural employee and a
person employed to provide domestic services, janitorial or
building maintenance services, food preparation services, or
housekeeping services.
2)Defines "employer" to mean an agricultural employer and a
service industry employer.
3)Defines a "service industry employer" to mean a person who
employs 25 or more employees who provide domestic services,
janitorial or building maintenance services, food preparation
services, or housekeeping services.
4)Requires the Employment Development Department (EDD), upon
certification that there are not enough legal residents of
California to fill all open agricultural and service industry
jobs in California, to issue permits authorizing an
undocumented person who meets specified criteria to reside and
work as an employee in California.
5)Requires EDD to issue permits authorizing an undocumented
person who is an immediate family member of a person to whom
the department issued a permit and who meets specified
criteria to reside in California.
6)States that it is the intent of the Legislature that these
requirements be interpreted and implemented in a manner that
recognizes and takes into account the difficulties encountered
by aliens in obtaining evidence of employment due to the
undocumented status of the alien.
7)Provides that, within 90 days of the implementation date of
this bill, an employer shall not employ an undocumented person
AB 1544
Page B
who does not have a permit issued pursuant to the provisions
above.
8)Provides that an employee permitted to work in this state
pursuant to this bill is entitled to all the same wage and
hour and working conditions protections under existing law
provided to an employee who is a legal resident of California.
9)Provides that a permit issued pursuant to this bill shall not
limit an employee to a single employer or occupation.
10)Requires EDD, beginning the third year after it makes the
certification required above, in conjunction with the
Legislative Analyst's Office, to annually publish a report
analyzing whether this program has caused the displacement of
employable legal residents of California in the agricultural
and service industries.
11)Provides that the program created pursuant to this bill is
not intended to confer legal status in a manner that would
restrict the enactment of superseding federal legislation that
seeks to alter that status.
12)Requires EDD, by May 1, 2013, to submit a formal request to
the federal government to receive the necessary authority to
administer the provisions of this bill.
13)Provides that this bill shall not be implemented unless EDD
receives the necessary authority, consistent with federal law,
to administer this program.
14)Makes related legislative findings and declarations.
EXISTING FEDERAL LAW provides that a nonresident seeking
admission to the United States as an immediate relative of a
citizen of the United States or as a family sponsored immigrant
is inadmissible as a public charge, unless, among other methods,
a person petitioning for that person's admission has executed an
affidavit of support with respect to that person. The affidavit
of support requires that the sponsor pledge to take certain
actions to maintain and support the nonresident while he or she
resides in the United States.
FISCAL EFFECT : Unknown
AB 1544
Page C
COMMENTS : One of the most significant areas of policy debate in
recent years has concerned federal and state action (or
inaction, as the case may be) around issues of immigration.
Despite discussion in recent years at the federal level, many
critics have described the federal situation as a "stalemate."
As a result, some states have entered the fray with policy
proposals of their own. As a recent report by the National
Conference of State Legislators indicated, "As in previous
years, law enforcement, identification/driver's licenses and
employment remained the top issues addressed in state
legislation related to immigrants."<1>
Some have addressed the frustration playing out at the state
level as follows:
"So what does this all mean? It means that state
governments, as a direct result of Congress' inaction, are
grappling with hundreds of pieces of legislation with the
hopes of bringing some sense of order to immigration. It's
incomprehensible that as one arm of the federal government
sues Arizona and Alabama to preserve its authority over
immigration, another arm, Congress, refuses to exercise
their authority to pass comprehensive legislation. It's
time Congress took the pressure off of states and did its
job by creating a workable immigration system that serves
our state's and nation's needs."<2>
This bill enacts the California Agricultural Jobs and Industry
Stabilization Program. The author indicates the following as
his reasons for bringing forth this measure:
"California agriculture, and to a lesser extent the service
industry in California, depends significantly on labor from
outside the state and nation for their economic success and
contributions to the state economy. Data confirms that
without access to this labor the economic results for
agriculture would be measurably reduced. Because of
-------------------------
<1> "Immigration Policy Report: 2011 Immigration-Related Laws
and Resolutions in the States." National Conference of State
Legislatures (August 9, 2011).
<2> Feliz Sefsaf, Wendy. "States Grapple With Broken
Immigration System as Congress Does Nothing." Immigration
Impact (August 20, 2011).
AB 1544
Page D
California's precarious fiscal situation, it cannot sustain
any revenue deductions. Without this unauthorized
workforce the agriculture and service industries would
suffer irreparable economic damage and as a consequence so
would California's economy.
This legislation links the need of these vital economic
sectors in California will the phenomenal contributions
made by the unauthorized workforce by providing stability
to these workers and their immediate family members. It
establishes a state operated pilot program under the
auspices and with the permission of the federal government
that would issue federal/state permits for workers in these
two industries in California. These workers would be
allowed to work and remain legally in California until the
US Congress or President of the United States decides on a
course of action that determines the immigration status of
these workers."
PREVIOUS EFFORTS AT FEDERAL "AgJOBS" LEGISLATION :
For several years, bipartisan legislation was introduced with
broad support in Congress. This legislation has generally been
referred to as the Agricultural Job Opportunities, Benefits and
Security Act (or "AgJOBS"). The "AgJOBS" compromise was
carefully negotiated by employee groups such as the United Farm
Workers and major agribusiness employers after years of intense
conflict. AgJOBS has traditionally been endorsed by major labor
and management representatives, as well as a broad spectrum of
organizations, including community leaders, civil rights
organizations, religious groups and farmworkers themselves.
"AgJOBS" represented a major compromise between farmworker
advocates and major agricultural employers to address the
agricultural immigration crisis.
The federal proposals have generally contained two main parts:
(1) An "earned legalization" program enabling many
undocumented farmworkers and H-2A guest workers to earn a
"blue card" temporary immigration status with the
possibility of becoming permanent residents of the U.S.
by continuing to work in agriculture and by meeting
additional requirements; and
AB 1544
Page E
(2) Revisions to the existing H-2A temporary foreign
agricultural worker program.
In 2003, the first "AgJOBS" bill was introduced in Congress when
United States Senators Larry Craig (R-ID) and Edward M. Kennedy
(D-MA) and Representatives Chris Cannon (R-UT) and Howard Berman
(D-CA) introduced the federal immigration reform bill.<3>
On May 14, 2009, Senator Dianne Feinstein (D-CA) and
Representatives Berman (D-CA) and Putnam (R-FL) introduced
"AgJOBS" in the 111th Congress.
In 2011, "AgJOBS" was included in the comprehensive immigration
reform bill introduced in the Senate by Senators Menendez
(D-NJ), Leahy (D-VT), Durbin (D-IL), Schumer (D-NY), Kerry (
D-MA), and Gillibrand (D-NY) known as the Comprehensive
Immigration Reform Act of 2011.
THE ELEPHANT IN THE ROOM: FEDERAL PREEMPTION
Aside from policy rationale, a fundamental issue concerning this
bill is whether or not it is preempted by federal immigration
law.
Under the Supremacy Clause of the United States Constitution
(Article VI, Clause 2), federal law may either expressly or
implicitly preempt state or local law. See Hillsborough County
v. Auomated Med. Labs., 471 U.S. 707, 713 (1985). In cases of
express preemption, Congress "maŬkes] its intent known through
explicit statutory language. English v. Gen. Elec. Co.< 496
U.S. 72, 78-79 (1990). Implied preemption, on the other hand,
arises in one of two circumstances. Field preemption occurs
when a state or municipality purports to "regulate conduct in a
field that Congress intended the Federal Government to occupy
exclusively." Id. Conflict preemption can occur "where state
law stands as an obstacle to the accomplishment and execution of
---------------------------
<3> In 2006, AJR 20 (Nunez) was introduced to demonstrate the
California State Legislature's support of the immigration reform
bill known as the Agricultural Job Opportunity, Benefits, and
Security Act (AgJOBS) introduced by Members of Congress. AJR 20
passed the Assembly Committee on Labor and Employment but was
moved to the Inactive File on the Assembly Floor.
AB 1544
Page F
the full purposes and objectives of Congress." Id.
Federal preemption carries particular force in the context of
immigration because regulation of immigration and immigrants,
legal and illegal, is "unquestionably exclusively a federal
power." De Cana v. Bica, 424 U.S. 351, 354 (1976).
Federal Law
"Congress shall have the Power? To regulate Commerce with
foreign Nations, and among the several States, and with the
Indian Tribes? To establish an uniform Rule of
Naturalization?throughout the United States?" U.S. Const. Art. I
§ 8 cl. 3, 4.
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding." U.S. Const.
Art. VI cl. 2.
In 1986, Congress passed the Immigration Reform and Control Act
(IRCA) in order to make "combatting the employment of illegal
aliens" the central approach to immigration policy. Hoffman
Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). IRCA
makes it unlawful for an employer to knowingly employ an
unauthorized alien. 8 U.S.C. § 1324(a)(1) (2006). Section
(h)(3) defines 'unauthorized alien' with respect to the
employment of an alien to mean that "at a particular time, that
the alien is not at that time either (A) an alien lawfully
admitted for permanent residence, or (B) authorized to be so
employed by this Act or by the Attorney General." Section
(h)(2) states that " ŬT]he provisions of this section preempt
any State or local law imposing civil or criminal sanctions ?
upon those who employ, or recruit or refer for a fee for
employment, unauthorized aliens."
An employer can confirm an employee's authorization to work by
reviewing the employee's United States passport, resident alien
card, alien registration card, or other document approved by the
Attorney General; or by reviewing a combination of other
documents such as a driver's license and social security card. §
AB 1544
Page G
1324a(b)(1)(B)-(D). The employer must attest under penalty of
perjury on Department of Homeland Security Form I-9 that he "has
verified that the individual is not an unauthorized alien" by
reviewing these documents. § 1324a(b)(1)(A). Employers that
violate IRCA may be subject to both civil and criminal
sanctions. Immigration and Customs Enforcement, an entity
within the Department of Homeland Security, is authorized to
bring charges against a noncompliant employer under § 1324a(e).
Depending on the circumstances of the violation, a civil fine
ranging from $250 to $16,000 per unauthorized worker may be
imposed. § 1324a(e)(4)(A); 73 Fed.Reg. 10136 (2008).
Federal Preemption Doctrines
The federal preemption doctrine has been divided into the three
following categories by the U.S. Supreme court: express
preemption, field preemption, and conflict preemption. Express
preemption is when the scheme of federal regulation is so
pervasive as to make reasonable the inference that Congress left
no room for the states to supplement it. Wisconsin Public
Intervenor v. Mortier, 501 U.S. 597 (1991). Field preemption is
when a federal statute touches a field in which the federal
interest is so dominant that the federal system must be assumed
to preclude enforcement of state laws on the same subject. PA.
v. Nelson, 350 U.S. 497 (1956). And, conflict preemption is when
enforcement of the state statute presents a serious danger of
conflict with the administration of a federal program. Id.; see
also People v. Giese, 408 N.Y. S.2d 693 (1979).
The standard for the federal preemption doctrine is not based on
fairness to the parties, but instead is determined by
Congressional intent. In re MTBE Products Liability Litigation,
739 F. Supp. 2d 576 (S.D. N.Y. 2010). Courts do not have to
decide whether preemption applies solely based on express
preemption language in a statute. Jones v. Rath Packing Co., 430
U.S. 519 (1977). In fact, in the absence of express preemptive
language, Congressional intent to preempt state law in a
particular area may be inferred when the scheme of federal
regulation is sufficiently comprehensive to make the reasonable
inference that Congress did not leave room for supplementary
state regulation. Id. However, finding preemption is
inappropriate without clear evidence that federal policy and
state law are in sharp conflict or that it would have been
physically impossible to comply with both federal and state
requirements. Id. However, preemption may be inferred if the
AB 1544
Page H
scope of statute indicates that Congress intended federal law to
occupy the legislative field, or if there is actual conflict
between state and federal law. See In re Garrett, 435 B.R. 434
(Bankr. S.D. Tex. 2010).
In Plyer v. Doe, the US Supreme Court agreed that states "might
have an interest in mitigating the potentially harsh economic
effects of sudden shifts in population", and thereby concluded
that States sometimes do have the power to regulate rights
afforded to undocumented aliens when these rights have "a
discernible impact on "traditional state concerns" 457 U.S. at
228 (1982). However, in the actual process of excluding or
including undocumented aliens under the protection of U.S. laws,
courts have consistently held that this remains the purview of
the federal government. See State v. Patel, 770 P.2d 390, 393
(Ariz. Ct. App. 1989).
As discussed above, in 1986 Congress passed the Immigration
Reform and Control Act (IRCA). IRCA criminalized knowingly
hiring undocumented workers, by imposing a heavy fine and a
short prison sentence on employers who knowingly continue to
employ undocumented aliens. 8 U.S.C. § 1324a (a)(1), (f)(1).
However, under the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) or 1996, only the federal government
is required to use the E-verify system, the electronic system
used to verify the legal status of an employee. Pub. L. No.
104-208; 8 U.S.C. § 402(a). In the perceived absence of proper
enforcement since its passage in 1986, several states including
Arizona, Alabama, South Carolina and Utah have passed a series
of immigration statutes that prohibit undocumented aliens from
performing a variety of activities such as living in public
housing, securing employment, applying for driver's licenses or
attending publically funded schools and universities.
One such bill, Act 69, was approved by the South Carolina
General Assembly in June 2011, which among other things, imposes
employer sanctions and mandates to local law enforcement
regarding the identification and apprehension of persons
unlawfully present in the United States. U.S. v. South Carolina,
2011 WL 6973241, 1 (D.S.C. 2011). During a Senate floor debate,
proponents of Act 69 stated that rather than attempting to enter
into a 287(g) agreement (a written agreement with the federal
government regarding immigration enforcement) with the federal
government as expressly authorized by the Immigration and
Nationality Act, 8 U.S.C. § 1357(g)(1), the State elected to go
AB 1544
Page I
forward with its own immigration bill because it was "really
important" to have State "control." Id. at 1. Supporters of the
bill also voiced the hope that "the Act would encourage persons
unlawfully present in South Carolina to find "a different state
to go to." Id. at 2. Supporters also stated their expectation
that the Act would make the federal government's "phone ring?off
the hook." Id. Section 8-14 of the final Act 69 established an
elaborate scheme of employer licenses and making it unlawful for
an employer to knowingly employ "an unauthorized alien." Id.
In addition to challenging four specific sections of the Act,
not including the employer licensing section, the United States
made a preemption challenge to the Act in its entirety. Id. at
3. In deciding whether preemption applies here, the court
stated that "a court should start preemption analysis with a
presumption against preemption. Id. at 3. The presumption
against presumption only applies when the federal government is
legislating in traditionally state controlled areas. Id.
However, the court notes that when a state legislates in a
traditionally federally controlled area, the presumption against
presumption does not apply. Id. The court then cites to
numerous recent decisions involving state immigration statutes
where "courts have generally declined to apply a presumption
against preemption because the field of immigration has
traditionally been a responsibility of the federal government
and not the states. Id.; See also U.S. v. Arizona, 641 F.3d
339, 348 (2011); Ga. Latino Alliance for Human Rights, 793
F.Supp.2d 1317, 1330 (2011); U.S. v. Alabama, 2011 WL 4863957,
12, 30, 39 (2011).
RECENT UTAH LEGISLATION :
Last year, Utah enacted a package of immigration legislation
that has some bearing on the preemption issues applicable to
this bill.
HB 116 or the Guest Worker Act was proposed by Utah
Representative Bill Wright and sponsored on the Utah Senate
floor by Senator Stuart Reid in 2011. HB 116 is almost exactly
the same as the introduced version of this bill. Both bills
AB 1544
Page J
have listed a procedure for workers to obtain permits to work in
agriculture or service related sectors. Utah Code Annotated §
35A-8-201 (1) (a)-(c) (2011). Furthermore, both bills have a
list of requirements that are to be met by each applicant for
such a permit, and allows for immediate family members of the
permit-holder to reside in the state for the duration of the
permit. Utah Code Annotated § 35A-8-301-303. Finally, both
bills require the respective state governments to petition the
Department of Justice to receive permission to carry out the
guest worker program. Id. The Utah bill also compels the state
government to coordinate with the FBI and the Department of
Homeland Security to ensure that the guest worker applicants do
not pose a threat to national security. Utah Code Annotated §
76-8-1505 (1) (2011).
HB 116 and HB 467 (a bill similar to Arizona's S.B. 1070), were
signed into law by Governor Herbert on March 15th, 2011. Between
March and November, the Department of Justice (DOJ) engaged in
talks with Utah state officials. However, in November 2011, the
DOJ filed a lawsuit in Utah's District Court claiming that HB
467's attempts to regulate immigration on a state level is
clearly preempted by federal law. The DOJ's press release
stated that the "federal government has the ultimate authority
to enforce federal immigration laws and the Constitution does
not permit a patchwork of local immigration policies. A state
setting its own immigration policy interferes with the federal
government's enforcement efforts." Attorney General Eric Holder
also emphasized that "patchwork of immigration laws is not the
answer and will only create further problems in our immigration
system. The federal government is the chief enforcer of
immigration laws and while we appreciate cooperation from
states, which remains important, it is clearly unconstitutional
for a state to set its own immigration policy."
With regards to HB 116 however, the DOJ has not filed a suit
yet. In fact in November the DOJ said that it has notified state
officials that Utah's Immigration Guest Worker statute is
clearly preempted by federal law. However, given that the
provisions of HB 116 will not take effect until 2013, the DOJ is
opting to continue exploring resolutions short of litigation
with state officials. The DOJ statement noted that if "Utah
fails to comply with federal law in this area, the department
will not hesitate to take the legal action necessary to
vindicate the important federal interests in this matter before
these laws go into effect."
AB 1544
Page K
RECENT EDITORIAL TREATMENT OF AB 1544 :
In a March 29, 2012, guest editorial in the Sacramento Bee, the
joint authors of this measure stated the following:
"Immigration has become the third rail of American
politics.
Whether it's the predictable chorus from the right ("Deport
them all!") or the left ("Amnesty for all!"), these shouts
are a loud excuse for politicians in both the Democratic
and Republican parties to avoid serious immigration policy
debate.
Yet all Californians suffer from the refusal of Washington,
D.C., and Sacramento to negotiate true immigration reform.
Agricultural employers watch their crops rot in the fields,
dependent on an entry-wage workforce willing to do the
backbreaking work of harvesting $37 billion of California
agriculture. American citizens overwhelmingly reject these
jobs, even with higher wage offers.
Unauthorized workers face uncertainty and exploitation as
they do the jobs American workers don't want. They cannot
count on symbolic rhetoric to stabilize their jobs and
instead wait for the next one-dimensional (politically
"safe") idea that threatens them without regard for the
role they play in keeping California's economic engine -
its workforce - stable.
Immigrants who enter the United States illegally and engage
in the drug trade, human trafficking and other crimes
burden our communities at a very high cost in taxpayer
dollars and human lives.
A real solution has to reconcile economics and human rights
with accountability to taxpayers. Such a proposal has to
recognize that immigrants who have illegally entered our
AB 1544
Page L
state are not uniformly "good" or "bad" as a group. Just
like any other group. Just like us.
We're tired of waiting for a federal solution. We're tired
of politics as usual. And so we are taking a risk.
We, a Coachella and Imperial Valley Democrat and a Central
Valley Republican, have joined forces to carry legislation
that will stabilize California's workforce in the
industries facing the untenable choice of whether to
violate employment laws or risk economic disaster.
We think there's a better choice that's healthier for our
economy, protects American jobs and deters exploitation of
workers with little political power. We introduced Assembly
Bill 1544 - the Agricultural Jobs and Industry
Stabilization Act of 2012 - to offer an alternative to the
business- hostile, anti-worker rhetoric we have listened to
for too long.
AB 1544 allows currently employed undocumented immigrants
already in California an opportunity to pay a fee and
remain - without citizenship benefits - part of our
workforce.
AB 1544 is a permit process, not a magnet for illegal
immigration. It restricts its provisions to only those
workers who have worked at least 863 hours, or earned at
least $7,500, in California during the 24-month period
ending Dec. 31, 2008. To annually maintain their permits,
eligible workers will have to continue employment in the
agricultural or service industries.
English proficiency or evidence of English language
learning is a requirement to hold a permit. A fingerprinted
criminal background check will have to be "clean" - i.e.,
no felony convictions.
AB 1544
Page M
AB 1544 does not confer legal status. It allows employers
to continue to employ workers safely and legally while
enabling workers and their families to remain together
without fear.
There are many details to work through. We recognize the
diversity of stakeholders, including farmers and
farmworkers, employers and organized labor, taxpayer
advocates and immigrant rights groups. We also recognize
the conflicting interests and need for balance that will
make our work even more challenging.
But we didn't choose public service because we thought it
should be easy. We chose to represent the people and the
places we care about. Our districts are our homes and our
communities, and they are hurting. We want to help by
getting the "untouchable" subject of immigration into the
public debate and to propose real solutions.
AB 1544 is only a small step toward comprehensive
immigration reform, but we think that it is a step worth
taking."
The next day, the Sacramento Bee responded with an editorial of
its own entitled, "Reject State Effort to Usurp Federal Law,"
which stated the following:
"In the face of inaction on immigration by Congress over
many years, the nation increasingly is lurching toward a
patchwork of opposing laws. States are taking it into their
own hands to usurp federal power and enact their own state
laws on immigration.
This is a giant retreat from the idea that the United
States is one nation, and a giant misstep toward a loose
union of states.
At one extreme is Arizona, passing Senate Bill 1070 that
AB 1544
Page N
effectively establishes a pass system ("show your papers,
please") for immigrants or anyone who looks like one. At
the other is Utah, passing House Bill 116, which would
grant residency and work permits to unauthorized guest
workers and their spouses and children.
Now two lawmakers seek to have California join the mess
with a Utah-like guest worker bill. However
well-intentioned, Assembly Bill 1544 by Assembly members
Manuel Perez, D-Coachella, and Linda Halderman, R-Fresno,
plainly is unconstitutional. Lawmakers should reject it.
The U.S. Constitution specifically gives the federal
government exclusive power to regulate immigration. State
laws that attempt to bypass the federal government are no
substitute for doing the hard work of persuading Congress
and the president to fix our broken, obsolete immigration
system.
AB 1544, like the Utah law, depends on getting a waiver or
authorization from the federal government. Yet there is no
process or law that allows the federal government to
transfer authority to the states to grant residency and
work permits to people who are in the country illegally. A
waiver hasn't happened in Utah, and it would not happen in
California. The federal government is more likely to sue
the state, just as it is suing Arizona.
State guest worker programs have a host of other problems,
as the American Civil Liberties Union of Utah pointed out
to the Utah Legislature. A state permit holder would not
have any protection from deportation in that state, or
anywhere else in the United States - nor would a worker's
permit protect employers who hire unauthorized migrants in
violation of federal law. Such permits would, however,
provide a "false sense of hope" to employers and workers
who are violating federal law.
Yet the problem AB 1544 attempts to address is very real.
An estimated half to three-quarters of agricultural workers
AB 1544
Page O
in this country are unauthorized migrants. The E-Verify
program that requires employers to verify the legal status
of workers does not address the need for workers. The
federal H-2A guest worker program fails to provide enough
legal workers. The same is true for janitorial, food
preparation and housekeeping workers.
AB 1544 is scheduled to be heard in the Assembly Labor
Committee on April 18. Lawmakers should kill it there and
craft a strategy for working with Reps. Kevin McCarthy,
R-Bakersfield, and Nancy Pelosi, D-San Francisco, in the
House and Sens. Dianne Feinstein and Barbara Boxer in the
Senate. This is a situation that calls for a sustained
commitment to creating a federal immigration solution."
ARGUMENTS IN SUPPORT :
Writing in support of this bill, the California Grape and Tree
Fruit League states the following:
"ŬW]e are deeply concerned about by the lack of prompt
action at the federal level to address labor shortages and
ensure long-term labor security. We continue to advocate
for a market-based solution for agriculture that ensures
our farms have the workers they need and the expertise to
harvest our food. However, while we continue to advocate
for efforts at the federal level, we vies Ŭthis bill] as an
important tool for ensuring the viability of California
agriculture by developing a state-run work authorization
program to ensure California farms and ranches are able to
obtain the vital labor necessary for producing the food and
fiber to meet the demands of both a growing domestic and
worldwide population."
La Cooperative Campesina de California writes:
"ŬWe have] been very active at the federal level attempting
to support bills that will address the vital issue of
immigration impacting the population we serve and the
prominent agricultural industry of California and the
nation. ŬWe] will continue to support the federal efforts
while supporting the efforts of this bill to focus on the
labor shortages and labor issues impacting one of the
AB 1544
Page P
greatest agricultural production regions of the world.
This bill opens the possibility of a resolution that
protects the workers and the agricultural industry of the
State of California ensuring its viable continuity as a
leading industry of the world.
ŬWe] reiterate that while we will continue to seek the
ultimate federal solution to the subject issue, we welcome
and strongly support the efforts of this bill to seek a
solution that is reasonable and sustainable with great
benefits to the farm workers and the agricultural industry
of the state."
ARGUMENTS IN OPPOSITION :
Writing in opposition to this bill, the California Labor
Federation, AFL-CIO states the following:
"Guest worker programs have historically benefitted
employers, not workers. Because workers are dependent on a
particular employer or the ability to work in a particular
industry, they are extremely vulnerable to abuse. A guest
worker program without a path to permanent status is, by
its nature, exploitative. Workers are permitted to stay
only as long as an industry needs them and when they are no
longer in demand, they have no right to stay in the country
where they have given these years of service.
In addition, state level immigration programs are
pre-empted by federal law. Not only would this program
jeopardize the rights of workers, but it would also give a
false sense of security to immigrant families desperate for
real reform. This program would do nothing to stop
deportations or raids on immigrants. The only ones who
might be protected are employers hiring undocumented
workers, but the workers and their families would still
have to live in fear.
The California Labor Federation continues to believe
strongly in the need for comprehensive immigration reform,
or any path to legalization that decriminalizes immigrant
workers. Far too many California workers must remain in the
shadows, unable to demand fair pay or working conditions,
because they are undocumented. Even with these injustices,
immigrant workers are at the forefront of the Labor
AB 1544
Page Q
Movement, organizing for a better life and breathing new
life into our unions.
More must be done to protect these workers' rights and to
offer a future of hope and opportunity for them and their
families. We also support trade policies that enable
workers on both sides of the border to provide for their
families so no one has to risk their life crossing the
dessert because it is the only way to feed a family. While
well-intended, this bill offers only false hope with no
real protection or path to permanence for immigrant
workers. It also jeopardizes the rights of all immigrants
by undermining federal preemption on immigration law."
Similarly, the Mexican American Legal Defense and Educational
Fund (MALDEF) opposes this bill and states the following:
"While we most definitely share your frustration with the
federal government's failure to enact immigration reform
that would address the status and protect the rights of the
millions of peaceful migrants who have contributed so
positively to our economy and society, including
specifically the many who labor in our agricultural fields,
the two bills are not an appropriate state approach to this
concern. We oppose Ŭthis bill] because Ŭit is]
unconstitutional, would never take effect, and would
therefore create false expectations and produce conditions
for unscrupulous persons to take advantage of some of our
most vulnerable Californians.
First, Ŭthis bill is] preempted by the Constitution and
federal law. In DeCanas v. Bica, 424 U.S. 351 (1976), the
Supreme Court held that the Supremacy Clause bars state
involvement in immigration regulation. Indeed, beyond the
ordinary application of congressional preemption
principles, the Court recognized a form of constitutional
preemption in the area of immigration, concluding that the
"determination of who should or should not be admitted into
the country, and the conditions under which a legal entrant
may remain" is "a regulation of immigration and thus per se
pre-empted by this constitutional power, whether latent or
exercised." 424 U.S. at 355. We are concerned that the
heavily-involved state-operated regulatory schemes in both
Ŭthis bill] would fall within this area and constitute a
"constitutionally proscribed regulation of immigration that
AB 1544
Page R
Congress itself would be powerless to authorize or
approve." 424 U.S. at 356. In addition, through
legislation, including the Immigration Reform and Control
Act (IRCA) of 1986, Congress has occupied the field of
immigrant employment in a manner that does not permit state
legislation such as Ŭthis bill].
Second, while Ŭthis bill] conditions implementation upon
receipt of federal permission or waiver, such permission
will not be forthcoming. Therefore, the legislation would
very likely never take effect. As noted above, Congress
itself may be constitutionally powerless to delegate the
authority in the bills to any state. In addition, nothing
in current federal law would permit the Administration to
grant a waiver or permission for California to operate the
extensive regulatory scheme in Ŭthis bill]. Therefore,
absent congressional action (and, as noted, serious
questions could be raised about the legality of such
action), the legislation cannot be implemented. If
Congress were prepared to act, a uniform national approach
to reform, including status adjustment for undocumented
workers, would be far preferable to any state delegation
like that contemplated in the Ŭbill].
Finally, if the legislation never takes effect, we have
serious concerns that the bill, if enacted, would create
false expectations, which will never be realized, among
those who would be eligible for some adjustment of status.
We are also concerned that unscrupulous notarios and others
would take the opportunity to swindle members of this
vulnerable population by promising assistance in
registering and receiving a status adjustment that will
never come. Moreover, we are concerned about how the
unsolicited provision of personal information to government
agencies or the collection of such information by private
persons could create real danger for those who provide it."
Finally, Asians Americans for Civil Rights and Equality (AACRE)
and the California Immigrant Policy Center write the following
in opposition to this bill:
"We strongly believe that immigrants regardless of status
are a vital part of our economy and cultural fabric.
Attempting to confer federal benefits to immigrants at the
state level would create a patchwork of immigration policy
AB 1544
Page S
in all 50 states. The regulation of immigration implicates
exclusively federal concerns, because of the need to have a
uniform national policy toward immigration. The Chinese
Exclusion Case, 130 U.S. 581 (1889); Fong Yue Ting v. U.S.,
149 U.S. 698, 711 (1893).
We agree that states have the ability to take a range of
activities concerning immigrants that do not conflict with
Congress's plenary power over immigration. However, it is
well settled that Congress has fully occupied the field of
immigration regulation through the Immigration and
Nationality Act (INA) and that states are preempted from
legislating within this sphere. See INA, Title 8 § 1101,
et seq.; LULAC, 908 F. Supp. 755, 775-76, citing Gonzales
v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) ("We assume
that the civil provisions of the ŬINA] regulating
authorized entry, length of stay, residence status, and
deportation, constitute such pervasive regulatory scheme,
as would be consistent with the exclusive federal power
over immigration."). In creating immigration policy on the
state level conferring federal benefits to immigrants,
Ŭthis bill] arguably conflicts with Congress's plenary
power over immigration and may, as a result, be considered
unconstitutional.
In states like Arizona, Georgia, and Alabama where SB 1070
and copycat legislation that criminalize immigrants are
being challenged in the courts, immigrant legal advocates
consistently argue the need to preserve Congress's plenary
power over immigration matters. Legislation such as Ŭthis
bill] undermines our efforts to combat anti-immigrant
legislation in other states like the one mentioned above.
We must do what we can to preserve the integrity of the
U.S. Constitution so that those individuals whose sole
objective is to promote an anti-immigrant agenda cannot
cite legislation such as Ŭthis bill] to further advance
their state-by-state strategy of pushing anti-immigrant
policies in an attempt to erode the federal government's
plenary power over immigration. As stated previously,
California is the state with the largest immigrant
population in the country and as such we owe the immigrants
who reside in our state a more thoughtful approach on these
matters and urge you to take into consideration the bad
precedent legislation such as this would create."
AB 1544
Page T
RELATED AND PRIOR LEGISLATION :
AB 1546 (V. Manuel Perez) would enact the California
High-Skilled Worker Retention and Family Act of 2012. AB 1546
was pending before this Committee, but the author has indicated
that he does not wish to pursue that measure at this time.
AB 735 (Keene) of 2007 would have required all persons who are
not citizens of the United States and who are currently working
or wish to work in the state to possess a California Work Permit
issued by the Division of Labor Standards Enforcement. AB 735
was referred to this Committee but not heard at the request of
the author.
REGISTERED SUPPORT / OPPOSITION :
Support
Act for Us, for Liberty, For a Just America
California Association of Nurseries and Garden Centers
California Citrus Mutual
California Communities United Institute
California Grape & Tree Fruit League
La Cooperativa Campesina de California
Opposition
Asian Americans for Civil Rights & Equality
California Immigrant Policy Center
California Labor Federation, AFL-CIO
Mexican American Legal Defense and Educational Fund
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091