UPDATE: First Circuit Affirms District Court’s Determination that Maine Cannot Bar Canadian Truckers that Federal Law Allows.
The First Circuit Court of Appeals affirmed the District Court in Maine Forest Products Council v. Cormier, holding that federal law preempts a Maine law designed to prevent Canadian truck drivers from hauling logs within the state under the auspices of the federal H-2A visa program.On appeal, Maine challenged only the district court's determination that the Plaintiffs showed a likelihood of success on the merits. That determination is, the Circuit Court said, the “sine qua non” for preliminary injunctive relief. Maine Forest Prod. Council, --- F.4th ----, No. 22-1198, 2022 WL 6914661 at *2 (1st Cir. October 12, 2022) (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)). See Opinion. Although the district court found the Plaintiffs’ likelihood of success on the merits on both preemption and equal protection grounds, the Circuit Court examined the preemption issue only. The Court declared.
Our system of overlapping federal and state sovereignties gives rise to “the possibility that laws can be in conflict or at cross-purposes.” Arizona v. United States, 567 U.S. 387, 399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). The constitutional rule in such cases, embodied in the Supremacy Clause, makes federal law “the supreme Law of the Land,” which overwhelms “any Thing in the Constitution or Laws of any State to the Contrary.” U.S. Const. art. VI, cl. 2. Congress thus “has the power to pre-empt state law.” Arizona, 567 U.S. at 399, 132 S.Ct. 2492.
Maine Forest Prod. Council at *3. The Circuit found that the conflict between Maine Public Law 280 with the federal right implied by the H-2A visa program is “starkly apparent;” that Maine’s statute is a “blunt intrusion” upon that right; and that the state law “rudely ‘interfere[s] with the careful balance struck be Congress.’” Maine Forest Prod. Council at *6, citing Arizona v. U.S., 567 U.S. 387, 406 2012.
October 3, 2022
Federal Law Allows Temporary Foreign Workers—Can A State Exclude Them Anyway? First Circuit Hears Challenge to Maine Law Blocking Canadian Truckers
The state of Maine and the federal government are in a court fight over who has the final word on whether foreigners can work in the United States. At issue are truckers from Canada serving the logging industry in the remote Maine areas near the Canadian border.
An H-2A visa permits a foreign temporary, nonimmigrant worker to enter the United States to perform agricultural labor or services of a temporary or seasonal nature. To obtain H-2A visas for proposed workers, the employer must state, among other things, that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of workers similarly employed in the United States.
The visa is only granted by the United States Department of Labor if the employment of the immigrant worker will not adversely affect the working conditions of citizen workers or if there is a labor shortage that needs to be supplemented by foreign labor. Specifically, the H-2A visas will not be issued unless the employer first contacts certain former U.S. employees, coordinates recruitment activities with the appropriate State Workforce Agency, and itself engages in positive recruitment efforts targeting U.S. workers. In addition, the limitations on and requirements of H-2A labor contractors, included the wages they must pay to H-2A workers, are quite rigorous. See Fact Sheet #26; Congressional Research Service, “H2A and H-2B Temporary Worker Policy and Related Issues” (June 9, 2020.) See Report.
Forest landowners and trucking companies in Maine, especially in remote locations near the Canadian border, have typically engaged Canadian truck drivers with H-2A visas to haul logs that are harvested in Maine to mills and other locations.[1] In June 2021, the Maine legislature enacted Public Law 280 to put an end to the practice by (1) prohibiting the engagement of motor carriers to haul logs from one location in the state to another location in the state unless the carrier is a U.S. resident, and (2) by prohibiting non-U.S. resident motor carriers from hauling logs from one location to another within Maine. The bill was sponsored by State Senate Troy Jackson, himself a professional logger who has long argued that Maine’s timber companies deprive Maine workers of jobs in the state’s forests by illegally hiring Canadian laborers for less money. Curiously, at the same time, the bill was being discussed in the Maine legislature, proclaiming that Canadian truckers were taking jobs from Maine truckers, and the press was reporting a truck driver shortage in the state.
In October 2021, the law was challenged in federal court by the Maine Forest Products Council (a trade association that represents the interests of the Maine forest products industry); Pepin Lumber, Inc. (a Maine logging company owned by a Canadian citizen that operates in Coburn Gore, Maine—a remote, unorganized township in the northwest part of the state on the border with Canada); and Stéphane Audet, a Canadian citizen employed by Pepin Lumber as a tractor-trailer driver. The Plaintiffs argued that federal law, specifically the Immigration and Nationality Act (INA) preempts the Maine statute and that the new law violates the Equal Protection Clause of the United States Constitution.
The Plaintiffs sought an injunction prohibiting Maine’s enforcement of the law. The state agreed not to enforce the statute while the federal district court considered whether or not to grant the injunction.
On February 18, 2022, Judge John A. Woodcock, Jr. of the District of Maine agreed with the Plaintiffs and enjoined the State Defendants from enforcing the law. See Order. While Judge Woodcock noted that he understood the state's interest in protecting Maine's workers and ensuring that employers do not hire foreign workers when U.S. workers are able and willing to do the job, he wrote that Congress developed the H-2A visa program to deal with that issue as part of national immigration policy.
Woodcock further opined that Maine's law "serves as an obstacle to federal objectives and is preempted" because it would have stopped and penalized hauling that is otherwise allowed under the federal visa program. Although the injunction was a preliminary one, it indicated a difficult path forward for the Maine law.
The State Defendants appealed the preliminary injunction to the First Circuit Court of Appeals (Case No. No. 22-1198) and an oral argument was held on September 7, 2022, before a panel consisting of U.S. Circuit Court Judges David Barron, Jeffrey Howard, and Bruce Selya.
Judge Selya commented that Maine’s law would take the decision of whether a foreign worker could enter the country away from the federal government and thus prevent the H-2A program from operating as it was designed to do. See Emilee Larkin, “Law targeting Canadian log truckers hits a 1st Circuit jam,” Courthouse News Service, September 7, 2022.
Maine’s assistant attorney general Jason Anton argued, “On its face, [the new law] is not a regulation of immigration, it does not determine when someone may enter or leave the country. Instead, it is a specific regulation that says only U.S. residents may perform a particular job within Maine.” Id. Nolan Reichl, the appellees’ lawyer responded, "If you do not have the job opportunity you cannot come into the country, so barring the job opportunity is an immigration regulation.” Id.
We will update this article when the First Circuit issues an opinion.
TCLF Analysis
This litigation raises several important legal and procedural issues:
Conflict of laws
Conflict of laws refers to a difference between the laws of two or more jurisdictions with some connection to a case, such that the outcome depends on which jurisdiction's law will be used to resolve each issue in dispute.
Federal pre-emption
When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2. Preemption applies regardless of whether the conflicting laws come from legislatures, courts, administrative agencies, or constitutions.
Guest worker programs
A guest worker program allows foreign workers to temporarily reside and work in a host country until the next round of workers is readily available to switch. Guest workers typically perform low or semi-skilled agricultural, industrial, or domestic labor in countries with workforce shortages, and they return home once their contract has expired. See Levine, Linda, Congressional Research Service, The Effects on U.S. Farmworkers of an Agricultural Guest Worker Program (December 28, 2009).
Inter-agency communications within states
An employer can’t get an H-2A visa for a foreign worker unless it engages with its state’s Workforce Agency to recruit US workers first. Representatives of state agencies that believe H-2A visas are being inappropriately granted to the detriment of in-state workers in the industries they regulate must adequately and frequently communicate with the State Workforce Agency to ensure that it is accurately informed and updated about the true employment situation in the impacted industry.
Court of Appeals for the First Circuit Briefs:
[1] Less than 0.5% of H-2A visas are issued for trucking jobs. The vast majority are provided for farm workers. See The H-2A program and nonfarm jobs.