Four years ago, in a legal battle waged by Blackie's House of Beef, the U.S. Court of Appeals in the District gave the Immigration & Naturalization Service broad powers to poke around factories, stores and other work sites looking for illegal aliens. Now, a District Court judge in San Francisco has decided that the D.C. judges were wrong, and has ruled that the INS search procedures are unconstitutional.
It looks like an issue that the Supreme Court eventually will have to decide, but in the meantime, corporate executives have more leverage to get tough with immigration inspectors if they want to.
The controversy revolves around what are called "warrants of inspection," obtained by the INS when tipsters or other sources of information have provided a reason to believe that particular aliens are working at a particular location. The warrants authorize the inspectors to look not only for the individuals named, but also any "others" on the premises who may turn out to be in the country unlawfully.
The evidence in the California case suggests that it is really the unknown "others" at whom the warrants are aimed: Of 192 persons arrested in the eight workplace raids involved in the case, 179 were "others" not named on the warrants. Moreover, Judge Robert P. Aguilar pointed out, often a raid catches none of the persons named on the warrant.
The D.C. appellate court had okayed the technique. The judges reasoned that the IRS seldom would be able to have accurate information on which illegal aliens were working where -- such workers are not even likely to use their real names, Judge Carl McGowan wrote -- so that without a liberal warrant authority, the service would not be able to do the kind of vigorous enforcement job that Congress expects.
But on Oct. 11, Aguilar, in International Molders' v. Nelson, rejected that precedent as a "radical departure" from the normal interpretations of the right against unreasonable search and seizure.
With other kinds of search warrants, he noted, police can take contraband or illicit goods that they did not know would be on the premises, but cannot search persons not named in the search warrant. Even though an INS raid is not technically part of a criminal prosecution -- deportation hearings for illegal aliens are civil proceedings -- Aguilar ruled that the same prohibition against involving persons not named on the warrant should apply.
Under the International Molders' ruling, managers should meet INS inspectors at the door and then bring them the suspects named in the warrant. Only if the company representative is "unwilling or unable" to produce the persons can inspectors enter.
In other cases, courts ruled that:
*States, counties and cities have almost no power to impose controls on toxic substances. The federal Toxic Substances Control Act preempts all local regulation of toxic substances for which the Environmental Protection Agency has prescribed rules. But the significance of the new decision from the U.S. Court of Appeals in New Orleans is that it gives a broad reading to the preemption clause, leaving local officials little room to maneuver. The court struck down an ordinance from a Louisiana parish that set such severe limitations on the "commercial solvent cleaning business" that, in fact, none could locate in the parish. Even though the local law mentioned no chemicals by name, the appellate judges reasoned that it was really aimed at a polychlorinated biphenyls treatment plant located near a public school, and that Washington has the sole right to regulate PCBs. (Rollins Environmental Services v. St. James, Nov. 10)
*Employes suffering from chronic contagious diseases are among the handicapped persons protected by the Rehabilitation Act. This means that federal contractors and programs running on federal grant money cannot discriminate against workers with such conditions, but must make a "reasonable accommodation" to allow them to stay on the job. The ruling from the U.S. Court of Appeals in Atlanta came in a suit by an elementary school teacher who had contracted tuberculosis at age 14 and was fired after a third recurrence of the disease. The fact that the school system considered her condition an impairment is proof that it is covered by the Rehabilitation Act, the judges reasoned. The ruling does not mean that the teacher has to be given her old job back, but that the system has to consider just how it can use her talents. One suggestion from the judges: She could teach less susceptible students. (Arline v. School Board, Sept. 30)
*Residential watchmen get a tax break. The U.S. Tax Court rejected a bid by the Internal Revenue Service to force watchmen who live in housing supplied by their employers to declare as income -- and pay taxes on -- the amount of rent that the housing might bring on the open market. The plaintiffs worked for a Chicago park district, and were expected to check open areas for fires or incursions by adjacent property owners.
The tax collectors had argued that because the work was performed outside the housing, the residences could not be a tax-free fringe benefit. (Vanicek v. Commissioners, Nov. 7)
Moskowitz writes about legal affairs for McGraw-Hill World News.