Mr. Bob Edwards, Mayor

Town of Payson

September 3, 2007

Subject: The constitutionality of an affidavit attesting employees are U.S. citizens

Dear Mayor Edwards:

The Town of Payson believes it is being very clever in addressing the employment of undocumented in an in-direct way.

The Town requires all Town employers to sign an affidavit attesting all their employees are U.S. citizens.

The Town leaders even gloat at this deceptive cleverness but it is a sham that will not go without a lawsuit that will request the court to provide damages. We support the undocumented and Hispanic businesses being damaged by the Town of Payson.

Requiring businesses to sign an affidavit stating they do not have an undocumented in their employ is unconstitutional.

We reject Payson’s interpretation of the express pre-emption provision of the United States Constitution. Under Payson’s interpretation of the provision, a state or local municipality properly can impose any rule they choose on employers with regard to hiring illegal aliens as long as the sanction imposed is to force the employer out of business by suspending its business permit–what is called the “ultimate sanction.” This interpretation is at odds with the plain language of the express pre-emption provision, which is concerned with state and local municipalities creating civil and criminal sanctions against employers.

In Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1885), an Arizona statute blatantly discriminated against foreigners in their choice of employment and once again the Supreme Court stood firm. The law called for 80 percent of all workers in any company, corporation, or business to be either qualified electors or native born citizens. As a result of this act, Mike Raich, a citizen of Austria employed as a cook in a Bisbee restaurant, lost his job because 70 percent of the employees there were foreigners. He sued his employer, William Truax, for reinstatement and the case went up to the Supreme Court. Justice Charles Evans Hughes, for the majority, declared a state might "deny its lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood."

The Justice then pointed out: The authority to control immigration-to admit or exclude aliens-is vested solely in the federal government. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And if such a policy were permissible, the practical result would be that those lawfully admitted to the county under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the states as chose to offer hospitality.

It is clear your requirement of all Town employers signing an affidavit attesting all their employees are U.S. citizens is unconstitutional.

It has been perceived Town of Payson leaders gloat at this deceptive cleverness but it is a sham that will not go without a lawsuit that will request the court to provide damages.

Hispanic News supports the Payson undocumented and Hispanic businesses who are being damaged by the Town of Payson.

Hispanic News therefore implores the Town of Payson to rescind the affidavit requirement and if not rescinded in a reasonable period of time, Hispanic News will obtain legal counsel for the undocumented residents of Payson and Payson businesses to sue the Town of Payson and ask for damages that will be a burden on the Town of Payson taxpayers.

Jon Garrido, Owner and CEO

The Jon Garrido News Network which includes Hispanic News