29 law professors have assured the University of California (UC) that there is no federal law preventing it from hiring “undocumented” students, but have omitted the potential legal risks posed to its human resources staff and to the UC regents.
Their standpoint, that the Immigration Reform and Control Act of 1986‘s prohibition on knowingly employing immigrants unauthorized to work in the U.S. doesn’t apply to state entities, overlooks the fact that such violations carry civil and potentially criminal liabilities, and can result in imprisonment.
In proposing that “regulations concerning the hiring of undocumented immigrants” fall within states’ traditional powers, these professors rely on the Supreme Court’s 1976 decision in De Canas v. Bica. This decision rejected a pre-IRCA challenge to California’s prohibition on knowingly employing unlawfully present immigrants, reflecting California’s protection of the “lawfully resident labor force” and the broad authority states possess to regulate employment to protect workers.
However, even if the IRCA did intervene on a historic state police power, Congress was explicit that employer sanctions apply to states. Both the House Judiciary Committee and the Senate Judiciary Committee agreed that all employers – private and public – must adhere to these penalties and verification procedures.
The 29 professors claim that UC has a constitutional right to employ “undocumented” workers as professors. They reference Supreme Court decisions in Sugarman v. Dougall, Foley v. Connelie, and Ambach v. Norwick, which collectively agree that certain forms of employment “go to the heart of representative government.”
If UC opts to risk legal consequences by employing immigrants unauthorized to work, it would be advisable to seek a law from California affirming this activity. Without this, UC may struggle to assert even its spurious defenses, and this historic police power and purported constitutional right may remain unattainable.
The original article can be found here.