🌳 reinterpretations of IRCA
understanding the true meaning of the law is a discovery process
I
In the midst of the prolonged death of the Deferred Action for Childhood Arrivals (DACA) program, by order of the 5th circuit court and Judge Andrew Hanen, a new development in immigration labor law has quietly occurred from the work of legal scholars from our favorite liberal bastion, California.
The argument, published in a memo by professors from the Center for Immigration Law and Policy (CILP) at the University of California, Los Angeles (UCLA) School of Law on September 7, 2022, is straightforward. It goes something like this:
The Immigration Reform and Control Act (IRCA) is a 1986 federal law that makes it illegal to hire undocumented immigrants.
The language of the federal law was not explicit in its application to state entities.
For federal law to bind to states, a clear statement is required.
From (3), IRCA does not bind state entities.
The University of California (UC) System is a state entity.
From (4) and (5), UCLA, as a campus of the UC system, can hire undocumented immigrants, regardless of their employment authorization.
Our reasoning is set out in the attached memorandum, but the core argument is as follows. The federal prohibition on hiring undocumented persons as a general matter is codified in the 1986 Immigration Reform and Control Act, or IRCA, in particular 8 U.S.C. § 1324a. Under governing U.S. Supreme Court precedents, if a federal law does not mention the states explicitly, that federal law does not bind state government entities. Nothing in 8 U.S.C. § 1324a expressly binds or even mentions state government entities.
This body of long-settled U.S. Supreme Court doctrine has particular force here, in the context of laws governing the employment of noncitizens. The federal courts have consistently recognized that states have broad power to determine the appropriate qualifications for state positions, including qualifications related to immigration status. As a result, the U.S. Supreme Court established, before IRCA’s enactment, that if Congress wants to change the balance between federal and state power by regulating in an area under traditional state control, it must do so with unmistakably clear language. It applied that rule to a California state law regulating the employment of noncitizens before IRCA’s enactment.
Nothing in 8 U.S.C. § 1324a or anywhere else in IRCA comes close to meeting the U.S. Supreme Court’s requirement of a clear statement that binds states. In stark contrast to IRCA, other federal statutes that do bind states mention them explicitly. These statutes include, among others, the Fair Labor Standards Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act.
In short, when Congress passed IRCA, Congress did not curtail states’ historic power to determine the employment qualifications of state employees. As a result, IRCA’s prohibition on hiring undocumented persons does not bind state government entities. State entities can lawfully hire undocumented students irrespective of employment authorization status under federal law.
This incredible realization is quite bizarre.
For over thirty years, IRCA has been interpreted with its intended purpose to bind the usual suspects of legal persons and both federal and state entities. But from a textual standpoint, this interpretation is wrong.
In fact, this mismatch in meaning seemed to have been uncovered and patched in the 1996 amendment of IRCA, the Immigration Reform and Immigration Responsibility Act (IIRIRA). But in IIRIRA, the language was still not clarified for state entities. The amendment only clarified the entity definition to include branches of the federal government.
IRCA makes it “unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employme’nt in the United States” an unauthorized individual (“IRCA’s prohibition”). 8 U.S.C. 1324a(a)(1). A “person” is either an individual, 8 U.S.C. 1101(b)(3), or an organization defined as “an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a group of persons, whether or not incorporated, permanently or temporarily associated together with joint action on any subject or subjects,” 8 U.S.C. 1101(a)(28). “Entity” is not defined as such in the statute, but a 1996 amendment to IRCA enacted in the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”) specifies that an “entity” “includes an entity in any branch of the Federal Government.” 8 U.S.C. 1324a(a)(7). Thus, the statute mentions persons and various entities, including the Federal Government, as covered by its provisions, but nowhere mentions States.
The truth of the law is in plain sight, yet it still must be discovered. A multitude of distinguished constitutional and immigration law experts from across the nation has endorsed the legal memo. Ahilan Arulanantham, Faculty Co-Director of the CILP at the UCLA School of Law, as well as one of the authors of the legal memo, is absolutely right when he explains the situation on The Nation’s Start Making Sense podcast: “law is funny.”
II
I’m surprised that this development is not getting more attention in other states.
A campaign for action, “Opportunity for All”, was initiated by undocumented student leaders at UCLA, with the CILP at the UCLA School of Law and the UCLA Labor Center. The campaign calls on the UC president, Michael V. Drake, to “[exercise] its authority, consistent with federal law, to open employment opportunities within the University to all qualified graduate and undergraduate students.” Media coverage of the campaign looks to only be confined to news in California. A New York Times article also coincided with the campaign’s press release, but that’s about it.
The true implication of this memo expands beyond California: any state entity can technically hire undocumented immigrants. For example, the Maryland Department of Transportation (MDOT) or the State University of New York (SUNY) are not bound by IRCA. Also, as they have already acted, Ron DeSantis and his Florida administration are not bound by IRCA.
However, it is in this context that the nature of the legal problem of hiring undocumented immigrants turns primarily bureaucratic and political. With CILP’s interpretation of IRCA, state entities have full authority to decide how to hire for employment, regardless of employment authorization. The question is: will state entities use their arbitrary authority in the matter?
The UC System will most likely be the first to decide, and other state entities will be watching. As of December, and since the “Opportunity for All” campaign’s inception in October, there has not yet been a new statement from Drake’s office: the legal memo is still under review.
And this makes sense: there are clearly many ramifications in acknowledging the memo.
For example, in the case that the UC system is favorable to the findings from the memo, what instructions do they need to dictate in order for undocumented folks to comply with other employment laws? One thing that comes to mind is that they would need to pay their taxes. This is possible: the Individual Taxpayer Identification Number (ITIN) was designed specifically for this. As the American Immigration Council notes:
The [ITIN] is a tax-processing number issued by the Internal Revenue Service (IRS) to ensure that people—including undocumented immigrants—pay taxes even if they do not have a Social Security number (SSN) and regardless of their immigration status.
Think of other compliance issues like this that must be resolved or at least addressed before the UC system can even begin to say “ok, yes this memo looks good to me.” I imagine this is what the UC system is considering at this very moment.
If any place can go forward with CILP’s memo, it is California: it’s clear that they are quite accommodating for undocumented folks. For example, California has recently allowed all of its undocumented to obtain a state ID. Previously, only those who could drive were eligible.
But for states like Texas or Alabama, and given that their respective state entities can employ who they want, they could very well say “oh, we will continue to respect IRCA, in the way that it has always been understood.” And that would be in accordance with the new interpretation of IRCA: the state entity is simply exercising its arbitrary authority. Unless, of course, some case law could enforce it otherwise.
III
This work by UCLA advances the idea that state law continues to be an arena to push forward immigration reform: federal law is not our only option. We have talked about what California has been doing recently. But even in Arizona, Proposition 308 was passed this past November, allowing financial aid for college students regardless of immigration status.
Again from Ahilan, on Start Making Sense:
People have thought about states’ rights arguments, in general, as more tools for advancing ideas that are opposed to civil rights [...] There have been certainly strands of states’ rights as pro-immigrants’ rights ideas here and there for a long time, including in-state tuition, which I think was 2001 […] The idea that immigrants’ rights activists would look deeply to states’ rights ideas as a way to advance the cause is more recent.
This reinterpretation of IRCA empowers more instances of state-level advocacy. However, let us be clear: the outcomes from this reinterpretation are only minor fixes. Advocacy and reform at the state level are not substitutes for that at the federal level.
As it stands, even in the current best possible scenario from this memo, undocumented folks will still not be employed by any arbitrary entity, but only by state entities. In the coming cancellation of DACA, for existing recipients who are working in these non-state entities, tragedy will ensue. They will be unable to continue working for private companies in retail, manufacturing, finance, engineering, and the like.
At the federal level, Congress has had over twenty years to act on this long-standing immigration issue with permanent legislation. There has been no progress. Again, the bells have rung for Congress to “act now”, in the lame-duck session before the new Members of Congress are inducted next year.
But still, I wonder if we can imagine extensions to the reinterpretation of IRCA: can we create the futures we want to meet our needs?
Could state entities act as an intermediate for legal persons (corporations, trusts, etc) bound by IRCA to hire undocumented employees? Think of a gig economy, in which the marketplace of labor is administered by a state entity.
Could we use this reinterpretation of IRCA as a new bargaining chip in immigration reform? Here’s one scenario that could play out: the hiring of undocumented individuals by state entities will be patched up with another amendment to IRCA. In exchange, amnesty will be provided to qualifying undocumented individuals.
The idea of (2) is quite something. In fact, a similar situation happened when IRCA was initially passed: undocumented immigrants who met certain criteria were allowed to apply for permanent resident status. Amnesty. How lovely that history repeats itself: the first time as tragedy, the second time as victorious farce.
IV
Law is funny. In reality, the discovery of its truth, the uncovering of pathways through its labyrinth, can be depressing. Without an interpreter of the archaic scriptures, you will be hosed. And even then, armed with the tools to understand the sacred text, we underestimate the luck involved: I have written about this before.
But fortune favors the bold. To change the system, it is necessary to understand it. And it is only in the combination of campaigning, policy advocacy, and rigorous scholarship of the law can the immigration system be rectified. We cannot only rely on the entirety of the behemoth to comprehensively reform from the top down. In tandem, progress must be achieved from the bottom up, at the local and state level, to achieve strides in manifesting our ideal.
It is the eleventh hour in the movement to secure rights for undocumented immigrants. It has come for us multiple times: first in 2017, then in 2020, and finally in 2022. We will continue to fight in a land that refuses to acknowledge us because this is the only land we know as home.