Nothing a doubt because the issue which I view as dispositive of the case at bench is now pending before the United States Supreme Court on certiorari, I dissent from the majority opinion.
As I analyze the case at bench, the key to its resolution lies in Labor Code section 2805 enacted in 1971. That statute states in pertinent part: “No employer, shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” If Labor Code section 2805 satisfies constitutional requirements and is therefore effective as the law of California, the Board’s requirement that an alien furnish indicia that he is lawfully in the countiy is a valid one. Ascertainment of the alien’s legal status is reasonably required to determine a key fact bearing upon his employability as a matter of law and hence whether he is legally available for work within the meaning of Unemployment Insurance Code section 1253. If, however, section 2805 is constitutionally defective, then no law prohibits the employment of an alien illegally in the United States so that appellant must be deemed available for work in the week for which he applied for unemployment insurance benefits.
The California Court of Appeal has declared that Labor Code section 2805 is an invalid invasion of a federally preempted area in Dolores Canning Co. v. Howard, 40 Cal.App.3d 673 [115 Cal.Rptr. 435], and De Canas v. Bica, 40 Cal.App.3d 976 [115 Cal.Rptr. 444, hg. den. in Supreme Court Oct. 24, 1974]. On June 24, 1975, the United States Supreme Court granted certiorari in De Canas on the issue of federal preemption (422 U.S. 1040 [45 L.Ed.2d 692, 95 S.Ct. 2654]). The key issue which controls the decision of the case at bench is thus currently in doubt.
Despite the grant of certiorari in De Canas, the current law of California is as stated in that decision and Dolores Canning (Knauff v. Shaughnessy (S.D.N.Y. 1949) 88 F.Supp. 607, 608). The Court of Appeal opinions are persuasive expositions of the law. Until the United States Supreme Court acts, I view them as controlling.
I am left then with a situation in which the employment of illegal aliens is not prohibited. Since it is not, appellant satisfies the requirements for benefits stated in Unemployment Insurance Code section 1253. It is not appropriate that either the Board or this court rewrite those provisions to impose a requirement for benefits that the Legislature did not enact.
*259I am not persuaded by the majority’s eloquent statement of the public policy underpinning of its opinion. The statement is persuasive that the Legislature should amend Unemployment Insurance Code section 1235 to exclude illegal aliens from benefits but irrelevant to the construction of a statute absolutely clear on its face.
To the extent that the public policy argument of the majority opinion is construed as application of a state public policy, it suffers from a vital constitutional flaw if Dolores Canning and De Canas are accepted as valid. Federal preemption applies just as much to judicial legislation by a state court as it does to law enacted by the legislative body of a state. If an area is federally preempted by the Constitution, a state public policy can no more justify a state decision resting on the local policy than can the same public policy justify a state legislative enactment.
To the extent that the public policy argument of the majority opinion is construed as a statement of federal public policy, it wrongly states it. The majority opinion rests upon a partial and consequently deceptive characterization of Public Law 283 of the 82d Congress (2d sess.) to state that there is a federal public policy against payment of unemployment insurance benefits to aliens not legally present in this countiy. Public Law 283 now incorporated in 8 United States Code section 1324, subdivision (a), states, in section 8, subdivision (a) (4), that it is a felony to willfully or knowingly encourage or induce an alien illegally to enter the United States. But that same section 8, subdivision (a) (4), ends with the sentence: “Provided, however, that for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.” (Italics in original.) Leaving aside the fact the Public Law 283 deals only with encouragement or aid to an alien to enter the United States illegally and not with what happens after he is here, the Congress has, in terms that allay all doubt, declared that employment of the illegal alien and practices normally incident to the employment are not contrary to federal public policy or law. The federal public policy condones and does not condemn the employment. (Dolores Canning Co. v. Howard, supra, 40 Cal.App.3d 673, 684; Cobos v. Mello-dy Ranch, 20 Cal.App.3d 947, 950-951 [98 Cal.Rptr. 131].) In view of that condonation of the employment of illegal aliens and of practices normally incident to it, I disagree with the majority’s conclusion that the normally incidental practice of payment of unemployment insurance benefits when the alien’s employment terminates is somehow contrary to federal public policy.
*260Appellant can be denied benefits only if we substitute a personal conception for what the law should be for the law and public policy as declared by the Legislature of California and the Congress of the United States. Because I believe that it is our function to apply the law as given us by the appropriate legislative agencies whether we approve or disapprove of the result to which that takes us, I would reverse the judgment.
Appellant’s petition for a hearing by the Supreme Court was denied September 24, 1975. '