DE CANAS v. BICA

Print this transcript Transcript: 

Argument of Robert S. Catz

Chief Justice Warren E. Burger: We will hear arguments first this morning in De Canas against Bica and Silver.

Mr. Catz you may proceed whenever you are ready.

Mr. Robert S. Catz: Mr. Chief Justice and may it please the Court.

The petitioners are here on a writ of certiorari to the California Court of Appeals, Second Appellant District.

This case raises the question of whether a state statutory scheme, which prohibits domestic employers from employing aliens not entitled to lawful residence, is unconstitutional under the Doctrine of Federal Preemption.

In 1971, the California Legislature enacted the Labor Code, Section 2805.

This statute was enacted in recognition by the California Legislature that the increasing numbers of illegal aliens coming into California were imposing severe hardships on the state's economy.

The statutes provides in part and the statute is reproduced in our brief, petitioners' brief at page three, that no employer shall knowingly employ an alien who is not entitled to lawful residence in United States, if such employment would have an adverse effect on lawful resident workers.

In addition to the above provision, 2805 imposes misdemeanor penalties on employers who utilize the Illegal Labor and in addition creates a private cause of action against employers, which allows employees to go into the Local Superior Court to enjoin employers' use illegal labor.

Now, the facts in this case are that petitioners, domestic farm workers from California were employed by respondents' farm labor contractors for approximately three months during the summer, harvest season of 1972.

In September of 1972, respondents laid petitioners off on the grounds that respondents had a surplus of labor and thus had no work available for them.

As a direct consequence of being laid off and believing that respondents were employing illegal labor, petitioners commenced this action in the Local Superior Court of Santa Barbara, California, pursuant to Section 2805, alleging that respondents were open and notorious employers of illegal labor.

In fact, at one point in our complaint, petitioners alleged that during the four-month period in 1972, the United States Boarder Patrol visited the work site of respondents and apprehended over 40 illegal aliens.

Among other things, petitioners sought their own job reinstatement, damages and a permanent injunction against respondent's willful and continued employment of illegal aliens.

After full evidentiary hearing on a motion for preliminary injunction in which petitioners sought to present evidence of respondents’ use of illegal labor, respondents filed a demur, challenging the validity of Section 2805 on the ground that statute was preempted by the Federal Immigration Law.

The Trial Court granted respondents' demur and declared Section 2805 unconstitutional on several grounds, but specifically on the ground that the statute was preempted by Federal Immigration Law.

Petitioners subsequently appealed this ruling to the California Court of Appeals, which it affirmed and the Cal. Supreme Court denied petitioners’ request for discretionary review.

A petition for cert was sought to this Court and granted.

At issue here today is the constitutionality of a state’s statutory scheme, fashioned to protect citizens and lawful resident workers from the unfair competition caused by the influx of illegal aliens into California.

That the problems of illegal aliens is one of great public importance, of course, is not in dispute today.

This Court took the opportunity to outline the scope of the problem just last term in its series of U.S. Boarder Patrol Cases.

In California, the problems of illegal aliens is particularly huge, since California -- because of California’s close proximity to the Mexican border.

Illegal aliens go virtually unchecked producing drastic effects, particularly on low income and minority residents who suffer substantial job displacement.

In addition, illegal aliens create a substantial wage (Inaudible) into Mexico, adversely affecting the local economies.

Justice William J. Brennan: (Inaudible) is whether is this field has been preempted by Federal Legislations?

Mr. Robert S. Catz: That is correct, Your Honor.

Justice William H. Rehnquist: Was it clear from the decision of the California Court of Appeals that your clients would have been entitled to relief under the California statute, had it -- the Court of Appeals not found it to be preempted?

Mr. Robert S. Catz: I think that if you look at the appendix, Your Honor, in the Superior Court's opinion, he expresses the view that he had no doubt that we could have established the facts of the case.

Justice William H. Rehnquist: You are talking about the Superior Court rather than the Court of Appeals?

Mr. Robert S. Catz: That is Correct.

Justice William H. Rehnquist: How about the Court of Appeals?

Mr. Robert S. Catz: I do not think the Court of Appeals really addressed that because the case went up on a demur, it was just considering the statutes, the validity of the statute itself.

Thus we submit that without a favorable adjudication of the constitutionality of Section 2805, the continued employment of illegal aliens who may render jobless thousands of lawful resident workers in California, in addition, domestic employers who by long time business practice intentionally seek out and rely on illegal labor will profit at the sake of the economy and will do so with total impunity.

At this time I think it might be helpful if petitioners outline for the Court, how the state statutory scheme operates and what obligations it imposes on domestic California employers.

In 1971, when the statute was enacted, it imposed the primary enforcement obligations of the statute on the California Labor Commissioner.

Pursuant to Section 2805, the California Labor Commissioner promulgated a comprehensive set of regulations interpreting Section 2805 and the regulations are found at pages 1A through 3A of petitioners' reply brief.

First, the California Labor Commissioner defines an alien not entitled to lawful residence.

The Commissioner defines an alien entitled to lawful residence as any non-United States’ citizen who possesses documentation issued by the Federal Government, authorizing him or her to work.

Thus, when an applicant and employee seeks employment and an employer has an express obligation to inquire whether the applicant be either a citizen or an alien.

If the applicant employee claims to be a citizen of the United States he must sign a declaration to that effect under oath.

If an applicant claims to be an alien, he must then display proper Federal Documents that are issued by the United States Department of Labor, attesting to his employment certification and now this must be done within three days of commencement of employment.

Employer liability then attaches when he fails to take the steps I have just described and an employee is found to be -- later on an employee is found to be unlawful resident alien.

Justice Potter Stewart: Mr. Catz, the statute is conditional.

It says no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States.

if such employment would have an adverse effect on lawful resident workers.

Has it been any administrative definition of that condition?

Mr. Robert S. Catz: Yes, there has Your Honor.

The last regulation -- it is in the brief at page, reply brief, at 3A, defines what an adverse effect.

Now 28 --

Justice Potter Stewart: Where is it now?

Mr. Robert S. Catz: That is at page 3A, petitioners' reply brief.

Justice Potter Stewart: Of your reply brief, page 3A?

Mr. Robert S. Catz: Yes.

Now, Section 2805 requires that use of illegal labor must have an adverse effect on lawful resident workers as you have pointed out Your Honor.

Adverse effect arises whenever illegal labor is employed in an occupation not deemed to be a shortage of labor in that field by the Secretary of Labor and the United States Department of Labor.

Now, the Department of Labor promulgates and lists those areas of employment in this country where there is a shortage of labor and those regulations are found at 29C of our Section 60 at sect.

In addition, adverse effect is defined -- arises whenever an employer pays an illegal worker less than the prevailing minimum wage, either State or Federal.

Thus for purposes of a hypothetical, physicians is one occupation or profession in which the Secretary of Labor has deemed that there is a shortage in this country.

So that if an illegal alien came to California and was engaged as a brain surgeon and was employed by the California Hospital, as long as the California hospital paid him in excess of the minimum wage, the hospital employer would not be subject to liability.

In the case we have here today, there is a surplus of agricultural labor and in other words, liability attached against the respondents because the Secretary of Labor of the United States did not list agriculture as a field in which there was a shortage of labor.

Where Federal and State Laws have regulated in the same area, this Court is evolved two basic approaches in determining the constitutional preemptive ability of the state law in question.

The first approach or test is often referred to as occupation and that renders any state attempt to regulate a Federal area invalid, even though it maybe agreed that the states’ scheme does not impair, but enhances and aids in the achievement of a Federal goal.

The Lower Court in this case held and this is the area that we complain off, is that 2805 was an attempt by the State of California to legislate in the area of immigration and the Lower Court concluded that Congress by the mere enactment of a Comprehensive Immigration Nationality Act, that of 1972, thus had expressed its intent by just the mere enactment to have occupied the field.

Now, we believe that the Lower Court erred because any judicial preemption decision in this case, based on the occupation test, should not have been applied and we say that because, first, there is no textual evidence in the Immigration Nationality Act, where its legislative history or even other Federal Laws, the Congress specifically intended to preclude the states from enacting limited statutes such as 2805.

We submit that Section 2805 is not an Immigration Law, but a law that regulates the labor practices of domestic employers.

We will concede that the statute's long range affect thus have an indirect and incidental effect on immigration, but the statute does not regulate immigration policy.

Instead, the statute prescribed a specific employment practice of domestic employers.

Section 2805 and the simple many regulations issued by the California Labor Commissioner, use Federal Immigration and Labor Law definitions to effectuate a Local Labor Law Policy.

The statute in no way alters Federal determinations concerning entry into the United States and in what terms and conditions entry maybe made.

Section 2805 merely precludes the knowing employment by California employers of those individuals defined by Federal Law Administrative Practice is not authorized to work in United States by virtue --

Justice William J. Brennan: Is that the Federal Statute to impose a penalty for knowingly employ an alien, (Inaudible) could that ever pass?

Mr. Robert S. Catz: No, Your Honor.

That would be the H.R. 8713 reported out of Mr. Elburg’s committee.

Justice William J. Brennan: And where does it stand now?

Mr. Robert S. Catz: It is -- we have heard testimony.

The Bill has been reported out of the House.

It was supposed to go to the House Rules Committee and that is scheduled for the spring according to --

Justice William J. Brennan: So it is still a live effort, is it?

Mr. Robert S. Catz: It very much is.

But there is no --

Justice William J. Brennan: If that would have passed, would that make a difference?

Mr. Robert S. Catz: It might.

It is my feeling that it certainly would not-- it would deal with the problem, but whether how it would affect this case, I hazard to say.

I might say that there is no action foreseen on the Rodino Bill in the Senate at all and no hearings were scheduled and my information is that not to expect it.

Justice William H. Rehnquist: Mr. Catz I presume your case is stronger by virtue of the fact that California’s regulation is limited just to illegal aliens rather than if it had been addressed to all aliens, legally or illegal?

Mr. Robert S. Catz: Well, it goes a little bit beyond the illegal aliens.

In other words, it defines lawful resident aliens as anybody who really is not certified by the Department of Labor to work.

Thus for example, if a student from South Korea was attending the University of California at Berkeley and decided to get a job during the summer and did not have proper certification from the Department of Labor to authorizing him to work and an employee who is adversely affected by him or her taking that position could get injunctive relief under Section 2805, but the primary purpose of the statute, of course, was to deal with the problems of illegal aliens which Congress has refused to deal with, at least in the employment area.

Justice William H. Rehnquist: If you deal with lawful aliens you have got problems with the cases like Truax against Raich?

Mr. Robert S. Catz: That is correct, but when I use the term lawful residence that is the definition that does not come from the Federal scheme.

That is the Labor Commissioner's definition of dealing with who is allowed to work by Federal Standards.

There may very well be people who are entitled to be in the United States, but not entitled to work and so the statute goes a little bit beyond the illegal aliens.

Anybody that comes into California who is either a citizen or authorized to work by the Secretary of Labor will not be affected by Section 2805.

Justice William J. Brennan: I gather that (Inaudible) Appellate Courts has held as this one did, this is the second is it not?

Mr. Robert S. Catz: That is correct, Your Honor

Justice William J. Brennan: It has held that 2805 unconstitutional?

Mr. Robert S. Catz: That is correct.

It actually preceded our case by a week.

It was argued the same month.

The appellants in that case were the State of California and for some reason they declined to take the case to the California Supreme Court.

Justice William J. Brennan: And the California Supreme Court refused to review this one?

Mr. Robert S. Catz: That is correct.

Justice Potter Stewart: Mr. Catz (Inaudible) my brother Rehnquist a moment ago.

I understood you to say that as you told us earlier that the statute does not -- as administratively construed, it does not mean one seems to say, it does not apply to aliens who are not entitled to lawful residence, but rather to aliens who are not entitled to work in the United States?

Mr. Robert S. Catz: That is correct, Your Honor.

I would --

Justice Potter Stewart: As determined by the Federal Authorities, by the (Inaudible)

Mr. Robert S. Catz: That is correct.

Justice Potter Stewart: And to that extent you say this precisely is congruent with the Federal Classification and no more than effectuates the Federal Policy?

Mr. Robert S. Catz: That would be our position, Your Honor.

I would be willing to concede that perhaps in the absence, I will not strongly concede it, but in the absence of the California Labor Commissioner's implementing regulations, interpreting Section 2805, that the statute itself would be seriously in question in terms of its validity.

However, it is our position that the California Labor Commissioner's definitions and policies salvage 2805.

Justice Potter Stewart: And what is the sanction if any in the Federal Scheme, it is simply deportation of the alien, is it not?

Mr. Robert S. Catz: That is correct.

I think it is significant to note that first of all, in the area of employment other than in the Farm Labor Contractor Registration Act which I will be addressing in a few minutes, there is no federal law which deals with this area that California has entered into.

But it is important to point out that illegal aliens do not even come in contact with the State of California in Section 2805.

If for example the California Labor Commissioner were to go out and visit an industrial factory and discover that there were 500 illegal aliens working there, the California Labor Commissioner would have no authority to apprehend the alien itself.

The entire relationship is between the employer and the State of California and of course, California does not stand at the Mexican border and waive people of.

Justice Harry A. Blackmun: (Inaudible) response to my brother Stewart that this is congruent in its application with the Federal statute?

Mr. Robert S. Catz: Well, I am just saying that the Section 2805 merely adopts the standards that the United States Department of Labor utilizes in determining who can work.

Justice Harry A. Blackmun: You mean that is the Schedule A, is it in the 29 CFR?

Mr. Robert S. Catz: That is correct.

In schedule B as well.

Schedule B in 29 CFR lists those occupations in which there is no shortage and Labor Certification would not be allowed by the --

Justice Harry A. Blackmun: Specifically then it is congruent with the Labor Department Regulations?

Mr. Robert S. Catz: That is correct.

Justice Harry A. Blackmun: That was-- no particular Federal Statute?

Mr. Robert S. Catz: Well, that code of regulation of course is promulgated pursuant to the references in the Immigration Nationality Act inviting the Department of Labor to determine those occupations in which there is a shortage or surplus of labor.

Justice Byron R. White: Well, there is a Federal Provision with respect to the employment of illegal aliens?

Mr. Robert S. Catz: No, Your Honor.

Well, there is none in the Immigration Nationality Act.

There is in the Farm Labor Contractor Registration Act, but that is limited to the Farm Labor context and not to industrial employers.

Justice Byron R. White: Yes.

But let us suppose you are talking in the area of Farm Labor and the same issue came up, do you think the state -- what if the California Law were just limit it to Farm Labors?

Mr. Robert S. Catz: Well, I would draw to the Court's attention for purposes of our preemption discussion, Section 15 of the Farm Labor Contractor Registration Act Amendments of 1974 provide that --

Unknown Speaker : (Inaudible)

Mr. Robert S. Catz: Yes.

I am sorry Your Honor, that is at page 32 of petitioners' opening brief.

Unknown Speaker : (Inaudible)

Mr. Robert S. Catz: White, Your Honor.

Justice Byron R. White: Now but -- now you would argue that if the California Law were limited to the Farm Labor situation, there would be no preemption because the Federal Law dealing with the same subject matter expressly saves state Law?

Mr. Robert S. Catz: That is Correct Your Honor, but --

Justice Byron R. White: And you would say that would be effective despite the Immigration Law?

Mr. Robert S. Catz: That is correct.

I think that the --

Justice Byron R. White: And do you not think that is somewhat persuasive with respect to the validity of the California Law in it is entirety, with respect to the intention of Congress?

Mr. Robert S. Catz: I think it is Your Honor.

I think that Congress is less spoken on the area of illegal aliens with the Farm Labor Contractor Registration Act and it deals to get to the -- it attempts to get to the root of the problem.

I think a final word perhaps needs to be mentioned about the anti Harboring Provisions of the Immigration Nationality Act and they are at page 7 of our rely brief.

This is the only specific Federal Statute which respondents argue, poses a potential conflict with Section 2805 and that is Section 274 (a) (3) of the Act and this Section provides that any person who “willfully or knowing conceals, harbors or shields from detection any alien not duly admitted or not lawfully entitled to enter and reside within the Unites States shall be guilty of a felony.”

Now, to prevent the interpretation that employment per se would constitute a crime under this Section and I emphasize the word this Section, Congress added the following proviso, “Provided, however, that for purposes of this Section, employment, including the usual and normal practices used in the employment shall not be deemed to constitute harboring.”

Now, this statute while exempting employment pre se from the crime of harboring, does not purport to grant an absolute exemption from criminal or civil sanctions for employers of illegal aliens.

There may well be given set effects in which the knowing employment of illegal aliens, particularly where an element of concealment or procurement is involved.

May subject an employer to criminal sanctions under the Act.

Now, there has been no specific judicial interpretation of 274 (a) (3) I believe by this Court, but examination of the legislative history reveals that the Congressional intent was to protect the innocent and unknowing employer from prosecution under this Section.

So we would argue the 274 (a) (3) indicates no more than Congressional silence regarding the prohibition against the intentional and knowing employment of illegal aliens.

This Section does not express an intent to protect the knowing employment of illegal aliens either in its text or in its legislative history and neither thus this Section express an intent by Congress to preempt the state --

Justice Harry A. Blackmun: Well, I gather that you are relying, if I read your brief correctly, rather heavily on what was done in the Farm Labor Contractor Registration Act, even though that is limited only to Farm Labor since that expressly says that it is intended to supplement the state action.

If that itself is evidence, have express, explicit on the part of Congress, then that in this whole field State regulation was permissible?

Mr. Robert S. Catz: I agree, Your Honor, that we are in relying heavily on the Farm Labor Contractor Registration Act Amendments and actually if this --

Chief Justice Warren E. Burger: (Inaudible) Mr. Catz.

We do not have the Solicitor General here to inquire further, but if the conclusion of his brief or his memorandum filed in opposition to your cert, he says --

Mr. Robert S. Catz: What page, Your Honor?

Chief Justice Warren E. Burger: At page six, the final, second to the last paragraph.

In considering legislation making employment of aliens a crime, yet the Congress has indicated that the problem is a national one which requires a more delicate balancing of interests and can be -- then that achieved by California Law.

Do I get an undertone there that there is a delicate diplomatic problem that enforcement of the California type of statute would irritate to Mexican, Central American -- Mexico and Central American countries?

Mr. Robert S. Catz: Well, of course respondents have vigorously argued that point and gone one step further and suggested for example that Section 2805 will drive illegal aliens out of California into neighboring states and I would like to just say that perhaps the potential is there for that, but in fact there is no mechanism for enforcing the statute.

I would be less than candid if I would say to the Court that Section 2805 will be a panacea for solving the immense problems that California is having.

However, I would say that if the statute has any value, is that it at least provides a vehicle until Congress fails to act to deal with a limited number of employers in California that knowingly hire illegal aliens and use it and rely on illegal labor in running there business.

California does not have the resources to strike out against employers, but at least it will be in the position to deal with those of few employers that will be abusive.

So I do not think there is an actual problem that will transcend beyond the California borders.

Justice William J. Brennan: (Inaudible)

Mr. Robert S. Catz: The problem is National

Justice William J. Brennan: (Inaudible) turn to page four of the Solicitor General’s memorandum, you notice that footnote 4, this is addressed to your argument based on the Farm Labor Contractor Registration Act, he says while that Act, the Farm Act contemplates some limited room for state laws.

The state law must be approachable and 2805 is not wholly in accord with federal policy and thus not appropriate.

I gather that is an attempted answer to your proposition that since Congress already said, the states may operate in the field of Farm Labor, then that must also be an expression of Congressional intent that states may operate generally in the field of all aliens, is that right?

Mr. Robert S. Catz: I would think so, but I would be -- I am little lost to understand the Solicitor’s conclusion that it is not appropriate.

Of course, I do not recall anything in the --

Justice William J. Brennan: What is that 205 want (Inaudible)?

Mr. Robert S. Catz: The word appropriate comes from the language of the Farm Labor Contractor Registration Act on Section 15 and I do not know what the Court, I mean, what the makers of the Bill meant by appropriate.

I would like to urge the Court that it --

Justice Byron R. White: It seems to me that at least goes some direction towards -- conceding that there is no overall preempts in just from the existence of the – of an un-exercised Federal Power?

Mr. Robert S. Catz: I think that is correct and that would be one of the arguments.

I think that this case, if I may suggest to the Court, can be adequately disposed on on a very narrow ground and that is that the Court of Appeals rendered 2805 unconstitutional on the basis that by Congress’ mere enactment of a Comprehensive Immigration Nationality Act, that Congress intended to occupy the field without there being anything more.

We would suggest that the Court dispose of this case in the same manner in which it disposed of the Dublino case which was a recent preemption decision of this Court where New York had it implemented a State WIN Program and there was a federal WIN Program and the Lower Courts declared that the State WIN Program was preempted by Federal Immigrate -- by the Federal ADC Program.

In rendering the decision in this case, this Court did not reach the conflicts question and we are merely suggesting that this Court need not reach the conflicts question either, that it can render its decision based on the occupation test alone.

Justice Byron R. White: I do not believe I understand the --

Mr. Robert S. Catz: Well, I am merely suggest --

Justice Byron R. White: (Inaudible) asserted in this case that the state law even if there is no overall (Inaudible) on the Federal power that there is a conflict between state law and federal law, an actual (Inaudible).

Mr. Robert S. Catz: I would suggest to you merely that since the Lower Court rendered its decision based on the occupation test alone that perhaps might be the only question that was before the Court.

Of course we have --

Justice Byron R. White: Occupation, you mean Federal Occupation of the (Voice Overlap)?

Mr. Robert S. Catz: Federal -- that is correct.

Unknown Speaker : (Inaudible)

Mr. Robert S. Catz: That is merely one suggestion that I will offer and I only -- and I do that simply because of the way this case disposed of the Dublino matter.

Justice William H. Rehnquist: With the thought that perhaps the California court would have a sharper idea than we would of the application of 2805?

Mr. Robert S. Catz: Yes.

In all candor, I do not think and I say so respectfully, I do not think the California court knew why it rendered the case unconstitutional.

There are overlapping doctrines in its opinion and it is hard for the reader to conclude whether they reached the preemption decision on either occupation or conflict and I invite the Court to look at that opinion.

In closing, we respectfully urge this Court to reverse the Lower Court's declaration that Section 2805 is unconstitutional on the grounds of federal preemption.

We do so because we believe that Section 2805 is but a labor statute that touches on the field on Immigration Law in an incidental manner, but in a very limited area that Congress has not expressly indicated its intent to occupy the field and finally the statute far from conflicting with Federal Law, furthers the accomplishment of Federal Law, policies, and therefore, it is not preempt.

Justice William J. Brennan: (Inaudible) I mean shaped for us that we -- whether we agree with you that has not been an occupancy in the field and there is room for state regulation.

Is the record sufficient so that we can decide whether in fact the state law in conflict?

Mr. Robert S. Catz: I think there is room in the record and there was a substantial transcript as well.

Justice Byron R. White: How about the -- if the state court did not really reach the question which you suggest they did not, is that right?

Mr. Robert S. Catz: I think the opinion is rather nebulous and I --

Justice Byron R. White: Then we would not know precisely what the state law reaches or what it means?

Mr. Robert S. Catz: Perhaps you Honor.

That of course is for the Court to determine.

Thank you.

Chief Justice Warren E. Burger: Mr. Marrs.

Argument of William S. Marrs

Mr. William S. Marrs: Mr. Chief Justice and may it please the Court.

It is respondents’ position that 2805 of the Labor Code is unconstitutional on three grounds.

The first is that it deals with Foreign Affairs and Immigrations and which is a subject of such down the Federal concern, that states are precluding from legislating in that area.

Clearly, 2805 will discriminate against the nationals and the foreign sovereign.

This may be a subject which Congress may want to do, but it is our contention that it is not up to the State of California to take that in their hands.

Justice Harry A. Blackmun: (Inaudible) State of California may do so?Mr.

Mr. William S. Marrs: Yes.

In the case of Farm Labor, 2805 applies to all employers.

Justice Byron R. White: You think the state laws are (Inaudible) separable or invalid the -- in part it might be not?

Mr. William S. Marrs: I am not sure I understand the question.

It is separable as to Farm Labor only?

Justice Byron R. White: Well, the California Law at issue here -- it covers farms as well as industrial labor?

Mr. William S. Marrs: Yes.

Justice Byron R. White: What if it were in so -- if it -- let us assume that if it were just a Farm Labor Law it would be valid?

Mr. William S. Marrs: I would disagree with that because --

Justice Byron R. White: Well, let us assume that it was, could this law be upheld insofar as it applied to farm labor?

Mr. William S. Marrs: If 2805 applied only to farm labor, I would say that it could not be upheld because the Farm Labor Contractor Registration Act took into account the state scheme, but that was as far as the Safety and the Health Standards.

There are some 12, I believe states who already have laws regulating Farm Labor Contractors and as far as the health and the safety of the employees and I believe that is what that was after and not that they had passed laws regulating the employment of illegal aliens and they were just inviting them to do that.

2805 also controls immigration rather than just being a Labor Law.

First of all the so-called illegal aliens will be unable to secure employment in the State of California and those that are working will be terminated.

There is also a group of aliens that are not entitled to lawful residents, but who are able to work under the Federal Scheme who would not be entitled under 2805.

Now, petitioners put much reliance on the regulations that -- which try to save 2805.

Those regulations were adopted three days after a Superior Court Judge in Los Angeles declared 2805 unconstitutional in the Dolores Canning case which was the other appellate case and they were --

Justice William H. Rehnquist: When would see other alien, you mean the green card people that come across on a daily basis --

Mr. William S. Marrs: I will get to those.

It is going to regulate those also.

Unknown Speaker : Are you intimating that the regulations were prepared in that three-day interval?

Mr. William S. Marrs: I am sure they were and I also think that if this Court upholds 2085, a Labor Commissioner could rescind those regulations and we are right back to the statute again with no regulations.

So then we have what is an adverse effect, who is entitled to lawful residence.

The regulations are not embodied in stone.

Also in California particularly there is a problem with illegal aliens who have come across into California, particularly in Southern California who have got jobs, have families, married and had families and they are protected from deportation by the Immigration and Nationality Act, but they are not given a document by the Immigration Authority to -- that they can work or anything and if this was enforced, those people while they are trying to get their status adjusted from illegal alien to lawful resident alien would be unable to work and that would frustrate California --

Unknown Speaker : If they are unable to work, are they not disqualified from working as a matter of Federal Law?

Mr. William S. Marrs: No, they are not.

In fact those people are encouraged by the Immigration to keep working to support their families until they can get there status adjusted.

Justice Potter Stewart: I understood and perhaps I misunderstood it.

I understood your brother's submission to be that under these regulations, under California regulations, anybody permitted to work as a matter of Federal Law is permitted to work under the statute?

Mr. William S. Marrs: Well, the regulations say --

Justice Potter Stewart: Did I misunderstand that?

Mr. William S. Marrs: Well, no.

That is -- the regulation says anyone in possession of the green card or any other Federal, any document issued by the Immigration that authorized them work.

But they do not issue these documents to one of this aliens who are subject to having their status adjusted.

They know where they are and it takes a period of time to get their -- they have to investigate their background and they do not issue them letter or anything that says they can continue to work because it is not a problem in the Federal Statute.

Justice William H. Rehnquist: Well, when you say subject to having their status adjusted, that means they are illegally here?

Mr. William S. Marrs: Yes.

Justice William H. Rehnquist: And they are not authorized by the Federal Government to work?

Mr. William S. Marrs: Yes, they are authorized to work.

Justice William H. Rehnquist: Expressly authorized?

Mr. William S. Marrs: Well, they did not come in under a Visa, but the policy of the Government is to continue them to work while they are having their status adjusted.

Justice William H. Rehnquist: But of -- that is a matter of discretion.

I mean, they can make an application for status adjustment and may be turned down by the Commissioner (Inaudible)?

Mr. William S. Marrs: Yes.

But under this, I do not know how many, but I am sure would be on a thousand would have to make an application to get their status adjusted or loose there job.

Justice William H. Rehnquist: And deportation has been suspended pending outcome of the change in status hearing?

Mr. William S. Marrs: Yes.

Justice Lewis F. Powell: Are you talking about the same type of aliens in the Government to make such an effort to keep from crossing the border?

If so --

Mr. William S. Marrs: Initially --

Justice Lewis F. Powell: If so, why are they not arrested and deported, if they may be arrested as they cross the border?

Mr. William S. Marrs: Usually these are people that have been here for four or five or even 10 or 20 years who have families and are now a part of the community and they are either a parent, a child or a spouse of a citizen or a lawful resident alien and the Government's policy is to keep them in the country until they can get their status adjusted otherwise they are going to break up the family units.

Unknown Speaker : So they have offered a get away with it better as their status?

Mr. William S. Marrs: I do not think that is probably true.

Yes.

Unknown Speaker : I did not hear you.

Mr. William S. Marrs: Yes that is true.

Congressman, since I believe has a Bill in right now to recapture those or to, everyone that has been in the country.

I think it is three years will be granted an amnesty type thing so that they can have their status adjusted.

Justice Thurgood Marshall: How does the Government justify and not giving Green Cards to them?

Mr. William S. Marrs: Well, the Green Card is given.

Justice Thurgood Marshall: Well, none of that is in the record, is it, you are talking about?

Mr. William S. Marrs: What?

On the Green card?

Justice Thurgood Marshall: Yes.

Mr. William S. Marrs: No.

Justice Thurgood Marshall: And in fact there is some are here without Green Card, but the federal Government allows them to work, is that in the record?

Mr. William S. Marrs: Well no, it is the practice of the --

Justice Thurgood Marshall: Well, is it in the record?

Mr. William S. Marrs: No it is not

Justice Thurgood Marshall: Well, how can we consider it?

Mr. William S. Marrs: I was just bringing in up in relation to the petitioners' reply brief as far as the I151 Cards in the documents.

Justice Byron R. White: Suppose we disagreed with you and with the Lower Court with respect to the general preemption or occupation ground, are you urging us here to sustain the judgment on the ground that there is an actual conflict between them?

Mr. William S. Marrs: Yes.

I think there is an actual conflict with 1324 (a)

Justice Byron R. White: But the Lower Court did not decide that?

Mr. William S. Marrs: Well, the Lower Court went on the occupation ground that the Immigration Nationality Act was so comprehensive that the states were precluded from them acting even though the Federal scheme was not.

There was a void there.

I think 2805 in the Regulations brings us right into the situation of Truax and that is if 2805 is valid then prudent employers in the State of California will refuse to hire all aliens, whether they are illegal, Green Card or whatever status so that the burden is not on them to determine the legal status, These people are not protected by Title VII as far as their alienage is concerned and they would either loose their jobs or would have to take lower paying jobs where employers needed to recruit other people from the workforce.

Justice Potter Stewart: Why on earth would an employer hesitate under this California Statute to hire an alien who had a Green Card because in order to be, to violate the State Statute he has to knowingly employ an alien who is not permitted to work in the United States?

Mr. William S. Marrs: Well, then he is put on the position of judging whether the Green Card is valid to start with and he becomes the arbitrator as to a -- is he inherently legally or is he not inherently legally where it would be much safer for him just to hire all citizens --

Justice Potter Stewart: Duality?

Mr. William S. Marrs: And I think in California that would -- especially in Southern California, that is a real possibility.

Justice Byron R. White: But he does not violate it unless he knows that the man is here illegally? I mean, he knows when he hires him, but he also must know that he is violating the statute?

Unknown Speaker : If he has a Green Card how could he possibly be knowingly hiring somebody who is not entitled to work?

Mr. William S. Marrs: Well, maybe the Green Card is a forgery.

I mean, he cannot tell.

I mean, maybe he cannot, maybe it is a bad, maybe it is a Bad Green Card that is obviously bad.

Justice Thurgood Marshall: (Voice Overlap) passports are all forgeries?

Mr. William S. Marrs: That is conceivable.

Justice Thurgood Marshall: But you could not evict a man for that.If he looks of what appears to be a legitimate Green Card, how could be charged with not doing that?

Mr. William S. Marrs: Then I think he get, kind of, what is a legitimate Green Card or someone else, that is an alien that is entitled to work, but does not have a Green Card.

Chief Justice Warren E. Burger: Was not the Green Card valid on its face?

Would that not constitute an abundant defense to a criminal action?

Mr. William S. Marrs: (Inaudible) Well --

Chief Justice Warren E. Burger: In California Courts?

Mr. William S. Marrs: I do not know.

That has never -- this law has never gone into effect the date it was to take effect.

It was enjoined by a Superior Court so we have never had any.

We do not have any case law under that all.

If a alien was a 151 one card looses this one, apply 151 card or has it stolen then he also has a burden on him.

He cannot -- under this until he gets a new card, the employer would not hire him and it takes from six months to two or three years to get a new I151 Card.

It is also our position that 2805 is unconstitutional because the Immigration And Nationality Act of 1952 has so -- is so comprehensive that they have left no room for the states to legislate and I think there is a specific intent by Congress to occupy the field here.

The nature of the subject matter in Foreign Affairs and Immigration, the pervasiveness of the legislation is very comprehensive.

The legislative history indicates that Congress thought they were passing the Comprehensive Bill.

The only earlier State Legislation on this was struck down as violating the Foreign Commerce Clause and in 1917 when the Immigration Nationality Act was passed, they continued until 1952.

There had never been valid State intrusion into these affairs.

If 2805 falls within the parameters of the Hine’s decision, we contend because there is such a comprehensive scheme of regulation that the states cannot help it, they cannot herd it, they cannot do anything to it.

They have to stay away from it.

The third ground upon which we believe 2805 is unconstitutional is that it is in direct conflict with 1324 (a).

2805 makes the crime to knowingly employ an alien not entitled of lawful residents.

1324 (a) grants an exemption for such an employment.

Justice William H. Rehnquist: Is 1324(a) is a California statute?

Mr. William S. Marrs: No.

That is the Immigration and Nationality Act which the --

Justice William H. Rehnquist: Where is that cited or set out in your brief?

Mr. William S. Marrs: In my brief it is at page seven of the appendix.

It is U.S.C. 1324 (a).

Justice William H. Rehnquist: Thank you.

Mr. William S. Marrs: At 7E and the proviso was on page eight, provided however.

Also Congress’ action with these Bills, HR982 and 8713, both of those Bills are --

Justice Byron R. White: Even if there was a conflict law and I am not sure there is.

What about the Civil Remedy under the California statute?

There is one is it not?

Mr. William S. Marrs: Yes there is.

Justice Byron R. White: Well, I do not see any preclusion of the Civil remedy, do you?

Mr. William S. Marrs: As regards 1324 (a) there is some.

Unknown Speaker : Alright, thanks.

Mr. William S. Marrs: HR982 and now 8713 specifically repeal that proviso and attach liability to the employer.

It is interesting to note that the way they do it, those are three-step process and that is one they give a citation to the administrative fine and then three there is a criminal penalty and Congress did this I think trying to balance on interest because there are various groups that feel this will cause discrimination against minorities if they --

Unknown Speaker : Is this on Roman 9 and Roman 10 of the 4618.

Mr. William S. Marrs: That will cause discrimination of by employers against minorities in this field.

Unknown Speaker : This was amended you say the proviso on page VII of your appendix to your brief has been amended?

Mr. William S. Marrs: It is been deleted in the proposed legislation.

Unknown Speaker : Proposed.

It is only a bill is it not?

Mr. William S. Marrs: Yes.

Justice Potter Stewart: That proviso is till in effect and there is a Bill pending that would delete it and would substitute a three-step process.

The first (Inaudible) first a warning, I think and then --

Mr. William S. Marrs: The citation and then a fine and then a criminal penalty.

Justice Potter Stewart: And that is so far it is pending legislation?

Mr. William S. Marrs: That is correct.

And that is a -- I think that shows a little of evidence that Congress is well aware of this problem and they are trying to find a way to solve it and California’s way is not their way.

They specifically rejected the original Bill, came in with a -- leave us a thousand dollar fine the first time out not similar to California it is only lesser amount and they rejected that because they thought it was too severe and would cause problems on employers and it would cause importers to discriminate against a certain minorities.

Justice William H. Rehnquist: Of course Congress has been a lot aware of it long time and has not done much about it?

Mr. William S. Marrs: Yes.

In fact they were aware of it in 1952 when they passed the Act and in the legislative history --

Chief Justice Warren E. Burger: Is there any doubt that Congress if it elects to occupy the entire field could nullify all state statutes in this area ultimately?

Mr. William S. Marrs: I believe they already have, but there is no doubt that they can.

Chief Justice Warren E. Burger: If they have it they certainly can, can they?

Mr. William S. Marrs: Yes.

Of course, that is inherently in the sovereign power of the nation.

When the Act was passed there was reference by the petitioner to Congressional record, Senator Douglas in 1952 offered an Amendment to Senate Bill 1851 which became this exemption 1324 (a) and his Bill would have removed that exemption and made it a crime to knowingly employee and employer and that Amendment was turned down.

So, in concluding it is our position that this subject is of such a dominant federal concern and Congress has weighed the burdens on the rights of all aliens in this Country in that the federal branch conducts Foreign Policy and Foreign Affairs and that California is intruding into this area and they are prohibited from so doing.

Justice Thurgood Marshall: Mr. Marrs (Inaudible) point, is there some California reason for this (Inaudible) --[Laughter]

-- which you cannot read?

Is there some rule out there?

This is the third time we have had it in two weeks.

Mr. William S. Marrs: Are they California cases?[Laughter]

Unknown Speaker : (Inaudible)

Mr. William S. Marrs: Well, I believe it is the printers choice and that the --

Justice Potter Stewart: If do not they include, you cannot see the black pentagon?

Justice Thurgood Marshall: But could you persuade the (Inaudible) in the future, you know, to sort of help poor eyes --

Mr. William S. Marrs: I will send him a note on that.[Laughter]

Chief Justice Warren E. Burger: Counsel, I have anticipated that and instructed the clerk to reject any such briefs hereafter.[Laughter]

Mr. William S. Marrs: Thank you.

Unknown Speaker : (Inaudible)[Laughter]

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.