By Kristen Poland

In response to the failure of the federal government to pass immigration reform this year, many states, counties and towns—including some in South Carolina—are taking measures into their own hands to mend what they say is a broken system.

But others say state, county and municipal legislation may not be the wisest method of addressing the issue, and instead may be a source of confusion and the potential for legal trouble.

In South Carolina, Dorchester and Beaufort counties have passed ordinances in an effort to curb illegal immigration in their counties. The city of Clemson has explored the issue as well but recently was advised not to move forward with an ordinance because of a recent decision that forbade a Pennsylvania town from enforcing its immigration ordinances.

A U.S. District Court judge struck down Hazelton, Pa.’s immigration ordinances, saying the laws violated the Constitution's federal supremacy clause and due process rights—even those of illegal residents—guaranteed under the 14th Amendment.

The ruling could act as a precedent in lawsuits surrounding similar ordinances around the country and governments considering passing such laws should think twice, said immigration attorney Amanda Newell of Carlock, Copeland, Semler & Stair LLP in Charleston.

Any local immigration legislation may be in direct violation with federal law and could cause legal headaches for the towns, counties and states that pass them, Newell said.

“What happened in Pennsylvania is huge—we can expect this decision to have significant ramifications around the country,” Newell said. “The right to legislate immigration belongs exclusively to the federal government. When states and municipalities pass laws in that area, there’s a high possibility they’re encroaching on federal law and could be violating the supremacy clause of the U.S. Constitution.”

Standing by their decisions
Even so, both Dorchester and Beaufort counties say they intend to stick by their new laws, saying their ordinances are different from the ones in Hazelton and are well within their legal jurisdiction.

Dorchester County Council enacted an ordinance on July 1 that allows the county to revoke the business license of any business that knowingly employs an illegal resident. Any citizen, lawmaker or law enforcement officer who has reasonable suspicion that a business employs illegal residents may file a complaint with the county and then that business will be subject to an audit.

Dorchester County Council Chairman Larry Hargett said council passed the ordinance because of complaints it received from citizens, including high school and college students looking for summer work, who cannot find jobs within the county.

It is council’s belief, Hargett said, that these jobs are being taken by illegal residents who will work for a reduced wage. In addition, small business owners have said they are being hurt by competitors who hire illegal residents and pay them a wage below the federal minimum.

He cited a bricklayer from St. George who has been in business for 32 years but has been losing jobs because his competitors are undercutting his bids by 50% to 60%.

“We believe this is due to these unscrupulous individuals hiring illegal aliens who will work 50-60-70 percent cheaper than an average American employee,” Hargett said. “We passed this ordinance to protect small business owners who are getting hurt by this.”

Beaufort’s ordinance is currently set to be enacted on Jan. 1, 2008. It is very similar to Dorchester’s ordinance in that it allows the county to revoke business licenses of those discovered to have illegal workers.

County Administrator Gary Kubic said the county will contract auditors to conduct about 25 random audits per year, instead of relying simply on complaints.