Robert Robb

The Republic | azcentral.com

The latest lawsuit against Maricopa County Sheriff Joe Arpaio by the American Civil Liberties Union has been depicted as seeking to stop his workplace immigration raids.

Technically, that's not what the lawsuit does. Instead, it seeks to have two sections of Arizona law dealing with identity theft declared preempted by federal immigration law. The lawsuit is likely to partially succeed. But it is unlikely to fully succeed, nor should it.

One of the sections of SB 1070 struck down by the U.S. Supreme Court would have created state criminal penalties for illegal immigrants seeking work. The court held that Congress decided that, while there should be the possibility of criminal penalties for employers, illegal workers should only be subject to civil sanctions. Moreover, that Congress intended to preempt the question and not permit states to adopt their own policies.

Arizona has a criminal offense of aggravated identity theft, which includes not only pretending to be someone else but also making up a fictitious persona. Aggravated identity theft is a Class 3 felony, whereas ordinary identity theft is a slightly less serious Class 4 felony.

Aggravated identify theft usually requires three or more instances or a substantial loss. If, however, it is "with the intent to obtain employment," a single instance triggers the more severe penalty.

Legislators said this was aimed at illegal immigrants. And while there might be others with reasons to use fraudulent documents to obtain employment, clearly it is overwhelmingly illegal immigrants who would find themselves afoul of the law.

Now, the law doesn't expressly make seeking employment a criminal act, as SB 1070 did. The criminal act is the fraudulent document.

Nevertheless, making a single use of a fraudulent document to obtain employment subject to the harsher penalty, as opposed to at least three instances in other circumstances, will be hard to defend in light of the U.S. Supreme Court's SB 1070 decision. I wouldn't be surprised to see the ACLU prevail in striking down that provision.

However, the ACLU also wants the state's general identity theft statute, which also includes creating a fictitious persona, declared preempted by federal immigration law. This makes no sense, and unless judges lose their minds, has no chance of success.

The general statute forbids the use of fraudulent documents for "any unlawful purpose." The statute makes clear that includes trying to obtain employment. But that's not the only prohibited use, nor is the use of fraudulent documents for employment treated any differently than their use for any other unlawful purpose. All are Class 3 felonies. And that's still serious stuff.

Congress has exhibited no intent to preempt the field of identity theft or the use of fraudulent documents. Indeed, these are generally regarded as state enforcement matters.

The ACLU has to make one of two untenable arguments. That because this statute can apply to illegal workers, it can't apply to anyone. Or that an exception to state criminal statutes related to the use of fraudulent documents has to be carved out for illegal immigrants seeking work.

People who come to this country illegally to work have a hard time finding it without using fraudulent documents. I empathize with them and favor giving them amnesty. But, in the meantime, giving them a pass on the laws intended to ensure that people are who they say they are is an entirely different matter.

Taking the identity of someone else, even if just to work, is a serious breach of the legal person's privacy. A made-up Social Security number can be a fraud on an employer who wants a legal workforce. Its widespread use depresses the wages of legal workers.

The question of whether workplace raids are a productive use of local law enforcement resources can be legitimately raised. But the ACLU isn't really asking the court to answer that question, nor is a court the proper forum for it.

Stripped to its naked essentials, the ACLU is asking a court to declare that state criminal laws forbidding the use of fraudulent documents don't apply to illegal immigrant workers. Regardless of your position on immigration generally, that should be considered just plain wrong.

Reach Robb at robert.robb@arizonarepublic.com. Follow him on Twitter at @RJRobb.

(column for 6.25.14)