Bill Description: House Bill 252 would require employers to use the federal e-verify system and also prohibit them from employing individuals who do not present proof of lawful presence in the U.S.

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NOTE: House Bill 252 is one of several bills introduced this session that deal with illegal immigration. Some of these include House Bill 11, House Bill 83, House Bill 135, and Senate Bill 1039. Unlike those other bills, House Bill 252 would target its regulations and enforcement efforts on Idaho employers rather than those who enter the country unlawfully. 

Does it increase government redistribution of wealth? Examples include the use of tax policy or other incentives to reward specific interest groups, businesses, politicians, or government employees with special favors or perks; transfer payments; and hiring additional government employees. Conversely, does it decrease government redistribution of wealth?

Illegal immigration comes at a cost to Idaho taxpayers. One study calculated a net negative fiscal impact of $4,800 per illegal alien. 

Illegal aliens use welfare programs at a higher rate than U.S. citizens, with one estimate suggesting that 59% of households headed by illegal aliens use one or more major welfare programs, compared to 39% of households headed by U.S. citizens.

Illegal aliens also strain our hospitals and schools, with the cost of educating the children of illegal aliens (which is required under the 1982 U.S. Supreme Court ruling in Plyler v. Doe) falling largely on Idaho taxpayers. Idaho already suffers from a shortage of health care professionals, which has led to government forcing taxpayers to subsidize nursing and medical residency programs. As the number of illegal aliens increases, so do demands on our health care system.

House Bill 252 does not directly target those who enter the country unlawfully, but it may reduce the incentives for illegal aliens to come to Idaho and correspondingly reduce the redistribution associated with their presence here.

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Does it promote the breakdown of the traditional family or the deconstruction of societal norms? Examples include promoting or incentivizing degeneracy, violating parental rights, and compromising the innocence of children. Conversely, does it protect or uphold the structure, tenets, and traditional values of Western society?

Beyond the economics of immigration, there is a political impact to consider. Even if today's illegal aliens are never permitted to vote, their children likely will due to the blanket provision of birthright citizenship required under the current interpretation of the 14th Amendment. 

There will always be a degree of speculation inherent in trying to predict the future. Political strategists will continue to debate the idea that 'demographics are destiny' and the future of birthright citizenship remains in doubt, but with an estimated 62,000 illegal aliens already in Idaho (many of whom rely on government redistribution as discussed above), there is a growing potential for a cascading political shift over the coming years and decades. 

Taking action today to reduce the incentives for illegal aliens to come to Idaho may serve the larger goal of protecting the state's traditional values and conservative culture in the future. 

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Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

House Bill 252 would create Chapter 3, Title 44, Idaho Code, to make it "unlawful for any employer to knowingly employ, hire, recruit, or refer, either for the employer itself or on behalf of another, for private or public employment within the state an unauthorized worker who is not duly authorized to be employed by law."

It would further state that "no business entity, employer, or public employer may knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the state of Idaho."

The bill says, "On and after January 1, 2026, every business entity and employer in this state shall enroll in the e-verify program and shall thereafter, according to the federal statutes and regulations governing e-verify, verify the employment eligibility of new hires through e-verify."

Of note, included in this bill's definition of an "employer" is "any individual" or "person" who "employs or seeks to employ an individual or individuals and that registers with the secretary of state." While the requirement that the employer "registers with the secretary of state" may limit the applicability of this definition to a small degree, it would still apply to a self-employed individual with a registered LLC, for example. In another section of the chapter, it says an employer must "verify an employee's legal status … by no later than the first day of work for pay if the employee will work for fewer than three (3) days."

The requirement to enroll in the e-verify program, comply with all "federal statutes and regulations governing e-verify," and verify the employment eligibility of any prospective employees creates a burden for any business with employees. It could prove especially burdensome for a small business or self-employed individual who needs some temporary assistance and is not familiar with or enrolled in this federal program. 

Any employer who is awarded "any contract, grant, or incentive by this state, any political subdivision of the state, or any state-funded entity" and any "subcontractor on a project paid for by contract, grant, or incentive by this state, any political subdivision of the state, or any state-funded entity" would be required to start using the e-verify system immediately. 

The enforcement mechanisms for this law are troubling, starting with the blanket statement that "compliance with this section may be verified by state authorities or law enforcement at any time." It is unclear how compliance would be verified or what level of intrusion into a business or a business's records this provision is allowed. 

The chapter would also take the unusual step of effectively deputizing the entire population of the state to assist in law enforcement, saying, "Any resident of this state may petition the attorney general to bring an enforcement action against a specific business entity or employer by means of a written, signed petition."

It further allows that the "attorney general may bring a civil complaint in any court of competent jurisdiction to enforce the requirements of this chapter."

An employer who fails to use the e-verify system even once would have "any business licenses and permits" suspended for up to ten days; be ordered to "terminate the employment of every unauthorized alien"; be subject to a 3-year probationary period during which he must "file quarterly reports with the attorney general of each new employee who is hired"; and be "required to file a signed, sworn affidavit with the attorney general within three (3) days after the order is issued by the court stating that the business entity or employer has terminated the employment of every unauthorized alien and that the business entity or employer will not knowingly or intentionally employ an unauthorized alien in this state."

A second offense would result in the permanent revocation of "any business licenses and permits held by the business entity or employer specific to the business location where the unauthorized alien performed work."

A third offense would result in the permanent suspension of "any business licenses and permits of the business entity or employer throughout the state."

The penalties for employers with government contracts would be harsher, with a first offense carrying a suspension of all business licenses and permits for up to 60 days. A second offense would mean a permanent suspension. 

Contractors would be required to obtain "a sworn affidavit" from their subcontractors, "signed before a notary that the direct subcontractor, in good faith, has complied with respect to verifying each employee's eligibility for employment" to avoid being held liable for a subcontractor's violation. Even with such an affidavit, a contractor could still be held liable if "the contractor knows the direct subcontractor is violating this section."

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Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the tenth amendment. Conversely, does it restore or uphold the principles of federalism?

House Bill 252 would incorporate federal law by reference in numerous places, including the blanket requirement that "the provisions of this chapter shall be interpreted consistently with 8 U.S.C. 1324a and any applicable federal rules and regulations."

It would define "knowingly employ, hire for employment, or continue to employ an unauthorized alien" as "the actions described in 8 U.S.C. 1324a."

It would also define "E-verify" and "Federal work authorization program" based on 8 U.S.C. 1324a.

It would define an "alien" as "any person who is not a citizen or national of the United States as described in 8 U.S.C. 1101 et seq."

It would define an unauthorized worker as "a person who does not have the legal right to be employed or is employed in violation of law or an alien who is not authorized to work in the United States as defined in 8 U.S.C. 1324a(h)(3)."

It would define "lawful presence" according to 8 U.S.C. 1373(c) and say, "In any court proceedings, the determination of whether an employee is an unauthorized alien shall be made by the federal government, pursuant to 8 U.S.C. 1373(c). The court shall consider only the federal government's determination when deciding whether an employee is an unauthorized alien."

Incorporating federal law by reference subordinates state law to changeable federal statutes, which means that the federal government can effectively change state law without the Legislature's knowledge or consent.

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