significant i believe very relevant similarities between the employment law that was upheld by the u s supreme court in whiting provisions in hazleton number one both prohibit the knowing employment of authorized aliens number two both deferred to the federal government's determination of any aliens status employment status number three both rely on the same federal statute eight u s c thirty seventy three subsection c to compel if you will or to by mandating every business using hazelton of the city gives incentives to the mandated it gives incentives a mandate would only occur if a city i had a past violation of the central holdings of the white in court in the employment context are number one the federal scheme is not exclusive so states do have permission to act in this field number two stripping employer of his business license is not a preemptive action first things go pro where there's no disagreement of yes you know one of the things a is the only one that could be construed that way but the way the city reads it it we do not read this can that having the employer have any obligation when he hires an independent contractor to then verify that the conkers of employees or the independent contractor self rather for a mill merely requires the employer if you will there's no employer employee relationship there of course it wired to attest that he is not personally employing any unauthorized aliens that he does not know of any unauthorized aliens in the employ of the independent contractor but not that of the proposed an obligation to verify and then number three there's no coercion here to verify the employees even if any contractors because and this is a big a big distinction between arizona and hazleton there's no penalty in arizona the cases start out the same way there is almost actually works like this somebody files a complaint and then the state attorney general or a county attorney investigates by checking with the federal government is this employee unauthorized or not and then a prosecution begins in court  state court hazleton begins the same way there's a complaint the city checks to the federal government to see if this alien is authorized to work or not and then there's no prosecution instead the city gives the employer an opportunity to correct violations and correcting the violation means either you terminate the employee in up to three days or you request a second verification from the federal government if you believe the first one is somehow somehow flawed so the there's no compulsion here because you will have a chance to correct  any problem down the road and then fourth brother and most importantly federal law transforms any principle and employer contractor relationship into an employee employer employee relationship as soon as the owner of the business or or the company knows that the an independent contractor has illegal aliens it is safe to say that again federal law says that if you are an owner of a business and you hire an independent contractor as soon as you become aware that the independent contractor has unauthorized aliens in his employ that transforms your relationship to them you are now technically an employer employee relationship and that's found in eight us c thirteen twenty four a would where in the ordinance nobody says it says this well i have a quibble point i shall be considered to have hired the alien for employment in the united states in violation of paragraph one a if the employer knows that the independent contractor law does once you're aware then you effectively treat that as your employer you know that you know about it and you have an obligation to do something about it and so it mirrors federal law in that respect so i don't think the what's the process that's available for any erroneous determination  is an authorized me works for this company the federal government would first check the databases which have the same databases the company could have used itself if you use the verify program and then the federal government has a process for a tentative non confirmation in other words if there are some it gives the person opportunity to contest or give more information to the federal government person being the contractor him directly employed employee of the record right in our case we allow either the employer or the employee the principal or the independent contractor here right now this goes to the employer of the federal government has told us that this employee is an authorized at that point the employer has two options and he go firstly because the employer the employer can immediately say no i've got i've got a work visa right here i want to contest that and then they can do that manually they call a manual correction in federal lingo they talked to him on the phone instead of just having the computer make it so that would be just like their office the business license would not be suspended until after that process is yes read it right there's a there's initially a three day period where they can correct and then that three day period is told under section seven of the ordinance if there's any question about the employees he said no no they got it wrong i am authorized to put the mike of just a little bit so i believe that portion of the ordinance of the the independent contractor part is actually on stronger ground than the arizona law was because remember the arizona law doesn't give any sort of opportunity like that to correct you're going to court and you're going to be prosecuted and the first penalty for the is the affirmative defense the opposing counsel has a public side has argued that the lack of an affirmative defense in the ordinance the from the defense in arizona's law being i used the i nine process i filled out the i nine forms  somehow we need to have that affirmative defense here the reason that an affirmative that defense is not even a political here is not from a defense applies in a prosecution in court the arizona statute takes you to court as soon as the federal government in terms says y states we don't we don't have a judicial proceeding in ours you go to the employer and say here's here's what we know would you please correct the situation and so an affirmative defense doesn't make any sense because there's nothing you're defending against you don't get funding is lost in the license  ultimately down the road but at this point the city comes to not saying we're taking you to court and you're going have to defend yourself and prosecution the city is coming to the employer and saying you have someone in your employee in your employ who's an authorized we believe so says the federal government here's here are your options so at that point you're not defending yourself you just have some options of the organs to try to correct the situation it never even goes to a judicial proceeding and lest the employee takes it to introduce a proceeding and says this violates my rights under some provision of federal law and you say that the process available to the challenged employee would be the either the employee or the employer to work with the federal authorities to yes correct the record and that is what i processed what what does that entail and could it be a process where they submit something to the appropriate authorities in the federal side and if they're still dissatisfied where did they go there well if they're still the satisfied at that point the organs can completely shut down because the ordinance says that the city must have a final conclusive determination of status from the federal government so if there's any question about this employee's status the ordinance is going to proceed the the other point about the affirmative defense is that the really what the city is offering is better than an affirmative defense i guess the city offers of chances to not be penalized in any way you correct your violation even if you had one hundred unauthorized aliens and you've been doing it for twenty years you correct it you're done and one other point  for me to think to me please how this provision that concerns the employers use of either farai operates this that serve to essentially negate any violation yeah if the employer used the verify to verify that particular employee the employer simply as i look we're done here i don't have to do anything because i used to verify and that guy and we you know i don't the orders doesn't apply here you cannot move forward on the road and so on that particular one the last point about the affirmative defense it's important to note that federal law has an interesting little twist here it u s c thirteen twenty four a a three the affirmative defense part provision does not protect the employer under federal law if the if the employer becomes aware that the alien is an unauthorized worker so once the employer has awareness his affirmative defense falls apart hasten organs gives the employer awareness and so again i think the affirmative five minutes for a battle that's all i care you can tell me when it's all you care about well you know in the next hour of this program the let's look at the rental provisions how did whiting affect the rental provisions we would argue that whiting did a number of things in regard to those first of all at the threshold matter whiting said that there's a very high threshold for implied preemption claims they are pressing the quote from the opinion our presence established a high threshold must be met if a state is to be preempted for conflicting with the purposes of federal act and quote yes is were you know i may have asked this implicit because of the presumption against preemption preemption always appeared and it implied preemption case always starts with the presumption that the congress has not display state authority and so we have i wouldn't that said save her because relations to rethink knows that you have to leave the federal government regulate who can come in but if local ordinance or a state statute wants to regulate in the terms of a licensing provision that's ok so why wouldn't it still be because the weight because of the way that provision you're referring to it's at thirteen twenty four a h two the way it's phrased it says that if a studio city or state may not impose penalties or sanctions was the word for employing an unauthorized in licensing and similar laws so it was it was that that section that subsection is phrased in terms of employment only it doesn't even i don't know language could be stretched to cover other aspects of an illegal aliens presence in the united states  but the second bit of language in here in whiting i really think it's important for the court to realize and focus on is that page one thousand nine hundred five previously before whiting there had been some question as to maybe whether you had to show a conflict with the state status or with a federal statute to win on an implied preemption claim a conflict preemption claim or whether you could show maybe just tension you know maybe that the state statute and the federal law were in tension here's what the white in court said implied preemption analysis does not justify a free wheeling judicial inquiry into whether a state statute is in tension with federal objectives such an endeavor would undercut the principle that it is congress rather than the courts that preempt state law and quote and that's end that was previously a kennedy concurrence and whiting elevated that to an opinion of the court that's really important here because the the court in whiting says look you can imagine tension between how a federal law might operate how the states that you might operate but tension is not enough you have to have a clear expression from congress how do you harmonize then that language from whiting with the court's subsequent arizona decision that found field preemption with respect to the elian registration congress very clearly contemplated and talked about and declined to penalize employees so they looked at what congress said in that statute determined that it was congress very clearly making an action here that would have preemptive effect that's still within the overall preemption in arizona when they found it because there was expressed language from the congressional history that said this is something we don't want to allow penalize in the the employee the second area where there was conflict preemption found sort of where there was field preemption found in arizona it was in the case of the alien registration system and their field preemption is kind of a different category altogether in field preemption concurrent enforcement principles don't apply the state law can be in complete harmony with federal standards if it's field preemption it is a complete displacement of the state from the field so we don't need to look at whether the law that state law looks like federal law as i recollect in the first opinion in our opinion opinion feel preemption was found with respect to the housing ordinance at least an aspect of it and how this writing or arizona undermine that conclusion that field preemption is applicable i think in that in that case arizona probably doesn't speak one way or the other unless one is going to argue that now it's field preemption because it's an alien registration system remember think of it this way we have had modern federal immigration laws for hundred twenty year period the supreme court has only found field preemption against the state or local law in the area of alien registration systems so it the congress establishes that qantas is a field printing case to remember to qantas showed the high threshold the court was and said well we already found feel preemption here we're going to say that this is on that field and therefore you know game over it's field preemption but in arizona the court went to it beginning of it's you know this starts with a federal and none of us i don't think we're is the federal power to determine immigration policy it will settle immigration policy can affect trade investment tourism and diplomatic relations the entire nation for the entire nation imposes sanctions but it clearly is and even was surprised to say that there's a concern that the way we treat illions in this country might impact u s citizens traveling abroad and therefore the federal government has never brought here and given all those kinds of things and that they're looking at the housing ordinance against that when he's with them is basically saying you're not allowed to have shelter in the township of fort worth and i think last time response when my question just said paragraphs justice kennedy even says we use we mentioned all of this as background for the preemption else is that what all those he doesn't say that these are principles that will determine the result of the pressure and the reason i mention that is then my second point for speeding and they think this person is an illegal alien they must make inquiries to the federal government note no discretion allowed and that one was the one that engendered all of the negative response from the governors of mexico it was that one that created all of the discontent in foreign relations and yet the supreme court upheld it so i think we have to be careful of reading too much into the supreme court's opening preparatory phrases of you know here's the whole setting immigration sits in because then they would have reached a different result and section to be your second point was about well doesn't the alien isn't the city effectively telling the illegal alien tenant you're not allowed to stay here first of all back to our  response the first time around it's more than just owning a home in many parts of the country you can buy a trailer and you can live in a trailer park because that's not covered by this this ordinance you can say gets on with a facetious well  program i am not sure i'm not advertising to illegal aliens that that's what they should do and it's not facetious i'm simply saying there are many many illegal aliens residing in the united states who do not reside in apartments the city is only acting within its traditional police power over rental accommodations many stay with other people in homes and and in large numbers in certain homes and and that's a very common way there are many ways illegal alien stay secondly the order doesn't regulate presence and illegal alien can stand on the ground  city hall in hazleton and carry a sign saying i think the mayor is is it is dead wrong in the city council are dead wrong you can say and i'm an illegal alien and the city does absolutely nothing about it he can walk the streets openly and you know for all does not in any way affect presence in the city of hazleton allows of all kinds of other forms of shelter and so to argue that the city is actually pushing the illegal alien city is definitely encouraging the illegal alien to leave just like arizona statute not allowing illegal aliens to have employment in state encourages them to leave just like federal law and let me give you this is my last chance on this point i just wanted to ask this one question and i'm on that point the whole purpose of the occupancy permit requirement that you disclose your your state your status your immigration status is to make sure or prevent unauthorized aliens from running property in his own no the rental ordinance which has the section where you obtain the permit the rental ordinance merely gather gathers information no one is denied a permit and no information on that permit is assessed in terms of a immigration status the alien just has to provide whatever he or she wants to say here's here's why i say i think i'm here legally but there's no assessment this is covered in trial as a matter of rather reaches reach as a murder of law if the person can't demonstrate they're not there legally there's no beverly's they don't have the authority to enter into a valid lease  ss they are in fact intended to be in united states we did present that that case law there's an armstrong case from the supreme court back in the one nine hundred twenty s that suggest that the courts should never give force to a contract that contemplates illegal activity like a contract and i think this is what you're saying like a contract that requires the tenant to remain on lawfully present the united states we say as a as a mad as a matter of city law that the city regards such a contract to be invalid as well and that's for the purpose of allowing that the landlord to go ahead and once he learns that he now is now knows that he's harboring an illegal alien he can go ahead and and terminate the tenancy because it was aware that he would be facilitating the continued legal presence but one other point the chief judge mckeon on this question of you know is the city removing or excluding ok is a pure legal matter they are not excluding anyone as i mentioned because you you can be present you can do all kinds of things in the city and and reside in other circumstances but secondly federal law requires cities to push people who are unlawfully present out cities are required to deny quote public or assisted housing and quote at  c section sixteen twenty one the issue there that's just how the tax dollars are going to be spent well you could argue that it was merely into to protect tax dollars but it goes further than that at sixty at forty two us c section fourteen thirty seven  y forty two u s c fourteen thirty seven why the city has if they become aware of any illegal alien in assisted housing they have to inform the federal government of it and then the federal agency has to inform the h s so it's more than just don't don't waste your tax dollars don't spend your tax dollars this way it's you know we want to encourage these individuals to leave a sixteen twenty one a also requires cities to deny all public benefits to illegal aliens and then sixteen zero one six says that it is a compelling quote is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits and then i would note eight u s c thirteen twenty four  one a roman numeral four which says that it is a federal crime for any person or entity to encourage or induce an illegal alien to remain in the united states once he knows that that person law encourages people encourages the displacement that the it requires people to encourage illegal aliens to leave how do we end it in this i think we get in this exchange during the initial argument as clear a no doing beyond that now we're talking about shelter and you've mentioned is is with the federal government has said we're not going to it's a policy matter allow the expenditure of public funds to certain kind of activity including supporting persons who are here who before i'm not sure that's a question that's been bothering me for a while could they missed revoke the the business license of any facility that allowed someone to use a public restroom unless that person could demonstrate jersey been here for many years twenty five years have a business going in a small town new jersey where a lot of townspeople they're here illegally have been pretty twenty years have been paying taxes for twenty years employing citizens which  there your business license will be revoked unless you can show that the people who are eating there can demonstrate they have a right to be here at what point is there just such an unwinnable tension between what the federal government in this discretion is doing these are the people who what can a city clearly not do a city clearly cannot impose a registration scheme and we now have two supreme court opinions that say you can't try to register every alien legal and illegal in your city and force them to carry cards around that's the federal government's job and the federal law does do that by the way requires every alien in the country to register and carry a document on their person secondly you can't give them any benefits permits or licenses under section six hundred twenty one thirdly the city can under no circumstances try to make its own determination of whether a particular alien is here legally or illegally and that was why the supreme court struck down section six of the arizona law it said this would allow arizona police officers to make their own decisions as to whether someone's here legally and whether they should be removed or not those are three things it's crystal clear a city cannot do so what about food the chief judge asks well first of all it depends on the circumstances but with in many in some circumstances food might fall within the federal law exception of emergency assistance so for example someone across the desert this is not available in pennsylvania so much across the desert any country that's emergency you would even call it medical assistance in that case but secondly it would be incredibly problematic for a city to be able to do that because the way the hazleton ordinance works is there is a juncture where time can be taken to consult the federal government to get a clear determination of any persons on a regular legal status i'm awful presence the united states there's no way to do that with regard to the serving of food  no way to consult the federal government india only a city they only want to have to consult the federal government thirteen seventy three says that that as a city or state work or government entity can consult the federal government get a reading or an employer can consult the federal government through verify and a way for a restaurant tour to consult the federal government and get a definitive understanding so i would argue that it is such an ordinance would be impossible to draft without being a conflict preempted because you've got you've got to have a definitive determination before you it because of the limitations of technology because i don't like legal principle because what you did to argue it is basically a technological limitations well you can imagine a situation is there almost now we go into the street their own independent inter so the court's not even willing to let police officers make independent determinations certainly not going allow restauranteurs to do it could you imagine a scenario far in the future where everybody suddenly has access to everyone's immigration status who's an alien in the united states ok first of all none of the aliens in this in this particular litigation are in the situation described with the recent announcement of standards in the federal government of exercise of discretion court needs to go there but let me give you some direct answers first of all there's no conflict with a federal statute remember it is a federal statute that premiums not an executive announcement in a press the president's announcement in a press release not a directive issued from a secretary to other underlings in the department has to be federal statute or federal regulations promulgated pursuant to that statute secondly it's important to remember whose objectives one of the all the supreme court presidents talk about conflicting with the objectives of the congress that's really critical here so it's congress speaking that changes any aliens status in the united states or congress to determines the criteria on which that aliens unlawful status is based and that it was reiterated in whiting at page one thousand nine hundred five it is congress that preempts state law it's also well established in the case of north dakota versus the united states it is congress not the department of defense that howard has the power to preempt otherwise valid state laws  third arizona the arizona decision rejected a somewhat similar argument in evaluating section two be the arrest protocol in the ers on a law the argument was made well look you know i was in the supreme court listening to this argument the arguments made repeatedly in the briefs and in the oral arguments what about an illegal alien that for whatever reason i says decided not to remove they don't have the resources they maybe some extenuating circumstances and arizona is mandating that federal police officers hold that person wall a check is being made with the federal government to see if he's here on lawfully or not and there's you know that seems like a conflict it's in tension with that federal objective and the supreme court said no that's not a conflict the courts were wording at page two five zero eight is it is true that section two b does a lot of state officers to consider does not allow state officers excuse me does not allow state officers to consider federal enforcement priorities in deciding whether to contact us about someone they have detained congress has done nothing to suggest it is inappropriate to communicate with ice in these situations however and then it goes on to explain more but that's a direct quote at twenty five zero eight and then finally  i would point out that again federal law still requires that alien until his status through some amnesty or some other action is chant is changed to lawfully present federal law still requires all states and cities to treat the alien as unlawfully present and encourage him to depart you can be imprisoned if you get knowingly give transportation illegal alien and very serious imprisonment you can be imprisoned if you knowingly encourage the illegal alien to remain in the united states and so until there is an actual transformation of status federal law still says we have to encourage these individuals to leave and i agree that that may be in tension with what the secretary announced in june but we have to go by what federal law things i have a number number of answers here one is that the what the court found in arizona was something that was exactly the federal registration scheme in arizona they imposed state penalties for fair failing to carry your federal id card with you they imposed criminal penalties for failure to do so they they required carrying it they required an alien who had not registered to go register under the federal state in other words it was a direct copy of the federal registration scheme in state law this is nothing like that secondly the ordinance doesn't do anything that looks remotely like registration it doesn't require anyone to carry document doesn't require people to come forward and get registered at all and it does not a lot you could you could argue that it's under inclusive it does not affect three very large groups of of aliens in hazleton aliens who are living in circumstances other than you know rented apartment building aliens who are in apartments whose tenancies commenced before the ordinance takes effect that they don't have to do anything annealing who is merely present in the city and then another broader difference is this ordinance applies to everybody u s citizens and aliens alike anyone who's a tenant you know is is subject to these provisions  and if we were to take the plaintiffs argument to its logical extreme they're basically arguing that any collection of information from people if that group of people includes aliens must be considered tantamount to an alien registration scheme well by that logic a common law that we mention this in our final brief on august ninth her letter brief a common city ordinance that air all over the country which require you to register your vehicle to park it in the city would constitute an alien registration scheme because some aliens will own some of the vehicles no have some of those permits there you have to provide information you have to carry that permit on your vehicle at all times you have to notify the city if you change address or if you want to avoid being taxed you have to notify the city of your immigration status you don't have one you don't have in most parking or dances or tag gordon says you don't but that would be one thing you don't have to notify the city but you but in many ways it's much more of a registration scheme you have all kinds of penalties if you don't carry that card if you will with you it's also like a driver's license a driver's license is do require the states are required to determine if a person is a citizen an alien lawfully present and if anyone is unlawfully present they can't get the license and i believe forty seven of the states now so license driver's licenses would also have to be considered an alien registration scheme so i think the argument proves too much just collecting some information from all people in a group including bill citizens and aliens is not any alien registration scheme and i really think that the court would be came up in the house of your discussion first and one of the things is just to clarify that in fact in order to live lawfully in rental housing in hazleton you need to prove that you're lawfully present you need to submit proof that your lawfully present now the city says we're not going to verify that necessarily on the front end but that doesn't change the fact that you're required to submit that proof that it's illegal for you to live in that housing without that proof and the fact that entitled to determine who can live in the city based on their immigration status you know the city relies upon the federal even if the federal if the city relies on the federal government's determination and i think the arizona case makes this particularly clear  the court explained this well i think the first time around and i i want to make clear that i think that the court could really issue tomorrow its previous decision on the housing provisions without running afoul of anything in arizona or whiting or any other supreme court case there's nothing that undermines any of this court's previous logic there and but i would point out that arizona reaffirmed in very strong terms that discretion is a principal discretionary exercise of officers under the executive branch that's right your honor i mean and we're not claiming that a specific exercise of discretion in a particular case itself has preemptive effect but we're talking about what what system to congress create and the supreme court has explained very clearly in arizona that a key part of the system that congress created in federal law and statute was to provide both the avenues for people who are here on lawfully to remain in the country that's the term the supreme court used to remain in the country despite being out of status and secondly that there is a key role for the federal government the federal executive branch to play in deciding when to initiate removal proceedings whether to and initiate rule proceedings and again against anyone and of course to determine whether relief from removal is appropriate so and those are features of the federal system that are  making it work on its own terms congress has created for example various kinds of humanitarian relief for individuals those kinds of relief there was an example the last time we were here we talked about an asylum applicant if an asylum application who has no status until their asylum application is granted if that applicant could be run out of hazleton and run out of every other municipality in the city based on the  every other municipalities in the country based on their current lack of status then congress is in tension and the treaties we've signed that make clear that you can't do that you have to accept people's claims  people's claims that they would be persecuted if they sent back if they were sent back to their home country would be meaningless there would be it would be impossible for that portion of that of that federal law to work correctly and that's true if you know with every form of relief that's often it's true with respect to the basic discretion that's reserved to the federal executive in the federal immigration law i also want to point out just on the hypothetical that was asked about food of course hazleton knows how to how to address that situation they would do it exactly the same way they dressed the housing situation to make everyone have a permit in order to go to a restaurant to make it you know before they embarked on this road of immigration regulation hazelton you didn't need a permit to rent an apartment in hazleton they created the permit so that you could verify everybody's status on the front end and restrict the availability of housing to those who are not authorized to be here and that's exactly what they would do if they wanted to address food which i'm sure they would say is within their police powers it's what they would do if they want to address mobile homes or title insurance or any of a number of other things in the future so there's no real limiting principle that the city has put forward that would address those sorts of situations i want to highlight a couple other aspects of the arizona decision there are more that are relevant that we've laid out in our brief but i think arizona makes clear that the concord an enforcement theory on which this ordinance was originally founded and on which it's been defended  until this point in the litigation is wrong that the court call that theory or the essence of that theory unconvincing on its own terms because it is inconsistent with the way that the federal government has regulated in this area of exclusive and i'm very fond of federal control and you know relatedly the court of the city says well you know there are certain ways in which we're allowed under federal law to take action that's to the detriment of people who don't have lawful presence right so we can deny public benefits we can report them to the federal government if we know they're here that work even if there's someone actually in practice i think under the under the regulations that hud as you put forward there's people who live in mixed families as people who have some members who have a lawful immigration status and others who d because she's not friendly and that things will be forcibly from that we see this is all the time from true are and you know and what the federal government i think has decided is that we're not going to provide those people with public benefits while they're waiting for their asylum application come for that's that's congress you know congress has decided that's part of the policy of the united states but that you know congress has quite explicitly decided the opposite with respect to whether they can be in the country in order to pursue in some kind of subsidized federally subsidized housing removing that and saying you can't leave and subsequently subsidized housing even though you may have a very valid asylum claim or torture claim does that go to what mr kobach is sang that spent in this particular way congress has not said anything more than that if you look at the the the analysis in section six with respect to as between seventy section six in the arizona decision what was critical there was  congress had decided you know there are these particular ways in which state police can get involved in the enforcement of federal law there's these four provisions that allow this arizona tried to do something else and go outside of that framework and that was preempted and in the same way here where congress has said ok eunice apologies here are the ways that are available to you to discourage illegal immigration it's not up to make those decisions is absolutely true and in fact the the city has kind of confirmed it in their briefs they've said notwithstanding how the federal system works notwithstanding the fact that people can get to get relief that there is federal discretion about whether to  to initiate proceedings against somebody notwithstanding all those facts that the arizona court relied on in its this in its decision we're just going to decide that for hazleton's purposes you can be removed from the city as long as you don't have current lawful immigration status and that's just not consistent with federal law it goes to the core of immigration regulation is it's constitutionally preempted for that reason and of course it conflicts with with the essential field operates on the essential feel that the immigration and naturalization act occupies i also wanted to just briefly address the the at the at the registration initially and it's not in any of the cases that i can see that it's an overgeneralization is not a record but my guess is the employees that we speaking about here are basically employees or will in that c understand of that the oath in those provisions in the hazleton statute just like there's always that you are aimed at giving those to the employer not to the employee if under the initial relationship of the employer and employee under state law the employee has no rights in this to begin with because an employee it will wearies their due process problem with an ordinance that just says we're going to tell the employer about this we are going to tell the employee about the potential was going on in terms of the confirming that that i think the due process problem is that it's not the employer acting on his own right pursuant to a and at will employment relationship there that's causing the worker to be terminated and the person doesn't even know that you're saying that's why their contractual relationship between the employee and the employer might be our will but it's still a contractual relationship and a third party has come in to interfere with that and that's our property interest in that contract employer that the employee employer relationship is illegal in therefore asking the employee earth to terminate what is an illegal contract under federal law oh yes that's what he's going to say but i mean the city is telling the employer right there including the city's part the city has said that the arizona law covers independent contractors but that's actually not true the arizona law that they quoted to you here is not the version of the arizona law that the supreme court reviewed in whiting if you look at photo ten of whiting it points out that there's two thousand there were amendments made in two thousand and eight that are not at issue in the whiting case the the language regarding independent contractors was added in those two thousand and eight amendments it was my understanding that that was not you know the right there is an aids you know and so and it you know just on the face of the statute right it adds categories to what federal federal law says you can't  recruit hire are referred for employment individuals who are on authorized to work right and you can't continue to employ them hazelton as categories right they say you can't let me just make sure i'm getting this right permit instruct or allow adding a whole new scope to what federal law actually covers and that's a big difference between hazleton on the one hand on the arizona law on the other hand arizona law actually says explicitly in the supreme court relied on this in its opinion it's the arizona law says specifically this law only actions that violate section thirteen twenty four  of the federal law violate our statute here hey that's very different than what hazleton does which is to add new kinds of conduct that fall within what the municipal law covers and so i think as this court previously found his weapon does coerce verification of independent contractors it does address different conduct than the federal law does and for that reason it falls on the wrong side of w because what weighting said was yes you know there is a federal authorization for states to impose licensing sanctions on people who violate the employer's are right that there's no question after waiting th bets true but the fact that they can impose additional sanctions doesn't mean that they can change the rules of the game for employers and for employees and that's what hazleton does and that's not what arizona did the the whiting plurality is a lot of emphasis on the fact that all that an employer has to do is abide by the federal rules and then he doesn't have to worry about additional sanctions in the state but and so that's why the i nine affirmative defense matters right because  in in in arizona an employer knows that if he has abided by the i nine process when he gets that notice from arizona saying we think we might have to suspend your license let's you know come in to court for a full blown adversarial hearing which is not what you get in hazleton come into court for a full blown adversarial hearing and we'll decide whether in fact that's true the employer knows hey look i did my job under under the i nine process and i'm good i don't have to worry that i'm going to be sanctioned that i'm going to lose my business license as a result of that hearing an employer in hazleton has no repose and i think the city's argument is really backwards when it's well you know that doesn't apply here because we don't give you any process you don't need a nine affirmative defense because it doesn't make sense because we don't have a process whereby employer's perspective under arizona law and under federal law you know that before you're going to be sanctioned in any way you're going to have adversarial proceedings to determine whether in fact you violated the law and you're going to be able to rely on the defenses that federal law provided for you that's not the case in hazleton in hazleton you get a notice one day saying give us the information about this person right you have three days to do it if you don't do it in three days you your license is suspended and then you get another notice some undefined amount of time later with no process in the interim saying fire these people within i think it's three days again or you lose your license  that's a very very different state of affairs then than what applies under federal law or under the arizona law and that that's a fact that the court in whiting put a lot of emphasis on i think the fact that employers  facing the same set of rules as they were otherwise and of course from the employees perspective it's even worse in hazleton and hazleton you know this isn't the verify program right they've they've now i think made that clear they're not going easy verify so you don't get the notice that an employer is required to give you if you have an initial non confirmation under the verify system you don't have the processes that the federal government provides to go in and try to correct that originally and so so again you know it's a very different situation from the employees perspective from the employees perspective the most likely thing that happens is that one day you get fired and maybe they tell you why and maybe they don't but that you know and i want to point out that the mayor said clearly on the stand that they weren't going to inform employees of that page fourteen fifty three of the record  weren't going to inform employees of complaints under the ordinance that you know he thought that maybe an employer would once they got the complaint but that there wasn't going to be a city process to do that and so so from the employer's employees perspective you know you're working one day you're fired the next maybe you know why it happened and maybe you didn't but that's not the way that the federal law or that the arizona law over time if the employer is is informed that they have to and inform the employee both of the of the result and of the options available for the employee to go try to probably reduce the problems from the employee preemption as you i think it would reduce it with respect to the employee but it wouldn't necessarily reduce it with respect to the employer because the employer still has this problem with not having the affirmative defense available to them and i want to make clear also the city has said not explicitly but implicitly in response to i think it was judge and i got a question that it knows how to how to how to how to implement an affirmative defense that's what they've done with the verify provisions you can walk in to that enforcement hearing there is no force in hearing you can tell hazleton forget about enforcing against me because i used to verify but you can't do the same thing with respect to the i nine process and so there's a there's a real mismatch verify itself as it is preempted all i have had meant to point out is the fact that they create a genuine affirmative defense for people who use the verify undercuts their argument that it wouldn't make sense to have an affirmative defense for the use of i nine and again in arizona the supreme court relied on the plurality decision in the supreme court relied on the fact that arizona provided both affirmative defenses for  i think at the end of the day again we have a situation where hazleton and the employment provisions has changed the way change the rules under which both employers and employees  e to operate an employer has a different set of rules and incentives regarding who he has to verify how much he can rely on the i nine process and what protections he has if and when he suspected of having hired an authorized worker then congress intended in the congress laid out in eartha there is nothing in the authorization for an additional licensing sanction that authorizes these conflict with federal law and so again it's a very different situation than whiting where as the court said i think in almost exactly these words an employer all that an employer has to do is comply with the federal employment laws in order to avoid sanctions under the arizona scheme and again from the employees perspective it's a radical shift in terms of what they're facing and and and  extent that hazleton's defense is essentially that this is less of an employer sanctions scheme and more of an employee sanctioned scheme or of a method to require determination  f individuals and that takes it i think even farther away from what the court authorized in whiting so if there are no further questions thank you you thank  for a statute could do consistent with federal preemption principles i don't know we talked about this in our exchange with you and i think the most important living prevent principle has to be that it does not attempt to get get on to the field of registering so it doesn't require people to carry cards or do anything that is a registration scheme the other principle would have to be that they must always rely upon federal determinations of any person's status and not take any action against any person unless the federal government confirms that that person status is unlawfully present those are the two most important limiting principles so when that a situation those two things they could do anything they want well now there's a couple more than me and i just thought of another answer the arizona court identified three driver's license second officers quote may not consider race color or national origin third the provision must be implemented in a manner consistent with federal law regulating immigration the ordinance doesn't have the first one because it doesn't involve detaining people on the road but the second and third limits are in the ordinance almost verbatim section five b two says that there is no enforcement that can be made based on national origin ethnicity or race and section six a is verbatim almost the a national origin neutral way and so i think that protection which is built into the hazleton ordinance has to be built into every state law in the in the area and then the attempt the provision implementing in a manner consistent with federal law remember that was a facial challenge this is a facial challenge there's got to be some indication that you're going to try to mess with federal law at all points a couple of quick answers on in rebuttal you asked earlier i think it was a judge been asking about the parking decal they don't ask you for your alien status co counsel reminded me that for the parking decal you do have to use the prison a driver's license and you don't get a driver's license if you're unlawfully present the point about the discretion that's built into the federal scheme according to opposing counsel he says the discretion that's built into th scheme is not a specific determination regarding a specific you illegal alien or or alien but it's about avenues that are built for aliens in general to remain unlawfully present despite their status first arizona nowhere says that nowhere says that there is in federal law a desire or a an avenue for aliens to remain unlawfully present despite their status nothing in arizona even intimate that secondly the example you guys talked about the asylum example is someone who's lawfully present when an asylum applicant presents his application and the application is formally accepted it's been done presented a timely manner applications filled out that person comes lawfully present upon submitting the application and its receipt acceptance by the federal government  have to you have to make an action and make your claim before you are considered lawfully present under federal law and again the city just the first of whatever the federal government answer back is this guy presented his claim he's lawfully present and that's the city goes with is the same true with respect to an application under the convention against same same is true there i believe i have to double check but i'm pretty sure it's the same as solomon catarrh almost always a parallel to thirdly the plaintiffs are arguing about what they think federal law should be they think and they said this in their argument they said they think federal law should be that every illegal alien has a right or at least is encouraged to remain until something happens that a law that changes his status in amnesty comes that down the road someday from congress and that there's nothing that encourages them to go no they're very definition as an alien unlawfully present means they must leave the united states and then there are all these incentives in federal law that require the cities to encourage the illegal aliens to leave the united states so this notion that federal law has an avenue for all illegal aliens to wait and hope that somehow they will somehow become soon become legal does not exist in federal law and that would render it u s c thirteen twenty four a one a for a no a t that's the provision that says you cannot encourage we could all be imprisoned any one of us for encouraging an illegal alien to remain in the united states the sentiment for bringing good news no not at all but but if we took actions to think my colleagues would illegal under eight u s c thirteen twenty four a any judicial preet proceeding giving force to an illegal contract the supreme court has said back in the armstrong case it would not be legitimate the employer is notified under section four b three of the ordinance and then the employer is given so that's his notice the employer is given an opportunity to be heard under forty three he may present whatever information he wants to the city and in effect that means that the employer is going to consult with the the employee and second what information do you have  and so the employee has brought of that point and then due process also occurs and sucks in seven f when either the employer or the employee me immediately go to court and everything is told and at this point we want to go to court we don't we think something s being done illegally here and so they can stop the city's in force and process there so there is pretty deprivation opportunity to go to a judicial proceeding there's post deprivation opportunity to get with you to still proceeding and then there's the notice an opportunity to be heard built into section forty three of the ordinance one last point and then also down on affirmative defenses this whole point in the last interchange on affirmative defenses i think opposing counsel is ignoring the reason why the i nine affirmative defense was put into federal law in the first place under federal law the federal the federal government comes to an employer and says we're going to sanction you for your hiring of unauthorized aliens the employee employer is allowed to say no no no i use the i nine forms he filled out a form i looked at his i i thought he was legal that was the reason for the front of the fence is that it was you made an effort to determine legality well under the hazleton ordinance the in for employers now informed well it turns out he's not legally authorized to work in the united states you have a new set of information and under both federal law and under hazelton b i nine defense evaporates at that point once again for employers known as information he has no i nine defen basically the prosecution goes away if under federal law if they view they're using either a i the federal government has published some notices in the federal register and the notices indicate that if you've used eve ariff i we're not going to go after