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Immigration Law

SNCJ Spotlight: States all Over the Map on Immigration Reform

By Lou Cannon

Two of the nation's most powerful politicians put aside partisan differences in the warm summer of 2007 and urged Congress to pass a comprehensive immigration bill that would at once secure the nation's borders and provide a path to citizenship for an estimated 12 million unauthorized immigrants then living in the United States. Unfortunately, the U.S. Senate failed to heed the appeals of President George W. Bush and Sen. Edward M. Kennedy, who were attempting to emulate President Ronald Reagan when he won bi-partisan approval of the Immigration Reform and Control Act of 1986. The Bush-Kennedy initiative was a missed opportunity that has not come again. By 2009, Bush was back in private life, succeeded by Barack Obama. Kennedy, the liberal lion of the Senate, passed away that year and hopes for immigration reform died with him. Although Obama promised throughout his 2008 campaign to make immigration reform an early priority of his presidency, he has yet to offer even a minimal proposal. For their part, Republicans promised little in the way of immigration reform when they regained the House in 2010, and they have delivered even less.

The result of this federal inaction, as a recent report from the National Conference of State Legislatures attests, is that the thorny issues of illegal immigration have been dumped on the states, which have marched off in all directions. According to the NCSL report, 40 states passed immigration laws of one kind or another in 2011 and six of these states enacted omnibus statutes that claim to offer comprehensive solutions. At one extreme is Alabama, with few immigrants of any description; only 3 percent of the state's population is foreign born compared to 12.5 percent nationally. Alabama set out to copy Arizona's much-disputed SB 1070 of 2010, which allows police to question criminal suspects about their immigration status. But the Alabama law makes SB 1070 look like a stroll along the Rio Grande. It increases penalties for those who employ illegals and bars people from entering into rental agreements with unauthorized immigrants - or even giving them rides in their cars. It requires schools to determine the legal status of immigrant children's parents. The Economist said that the Alabama law is so poorly drafted that it "might even keep some legal migrants out of state universities." Mary Bauer, legal director for the Southern Poverty Law Center, told the magazine that the new law would discourage illegals from reporting crimes.

Georgia, Indiana, and South Carolina also passed omnibus bills restricting benefits for illegals and cracking down on those who employ them. Legislatures in these states acted over the objections of the business community, which questioned the reliability of the federal E-Verify database for checking the legal status of immigrants and suggested that anti-immigrant laws could cost states tourism and international business opportunities. These arguments were trumped by economic concerns. Advocates of the measures said they would save states money on health and education and preserve jobs for U.S citizens. In the grim economic climate that now pervades the country, E-Verify has emerged as the wave of the future. Encouraged by a Supreme Court decision upholding an Arizona law that uses E-Verify to penalize employers who hire illegals, nine states adopted the system in 2011, bringing the number of E-Verify states to 18.

Utah also enacted a legislative package with a provision allowing police to question criminal suspects about their legal status. In other respects, however, the Utah approach contrasts in tone and content with the omnibus bills passed by other states. It was based on the Utah Compact of 2010, drawn up by business, political, religious, and law-enforcement leaders to address "the complex challenge associated with a broken national immigration system." The Utah statutes provide for a guest-worker program, which would require a federal waiver, and work permits for unauthorized immigrants already living in the state. Utah stands out among all states in attempting to examine root causes of the issue; one of its new laws creates an advisory commission to assess the economic, legal, cultural, and educational impact of immigration.

Utah is not the only state that has made life easier for unauthorized immigrants. Connecticut and Maryland this year passed laws (CT HB 6390, MD SB 167) allowing illegal immigrants to become eligible for in-state college tuition. In Washington, Congress last year rejected the Dream Act, which would have put illegal immigrants who entered the United States as children on a path to citizenship if they excelled in college or enrolled in the military. But in Sacramento this summer the California Legislature passed its own Dream Act (AB 130), allowing unauthorized immigrants to receive financial aid at privately funded colleges. Politicians in states such as California are walking a tightrope between a growing Latino electorate, which favors such legislation, and those who oppose giving illegals educational advantages.

Once upon a time coal miners descended underground with caged canaries, which are sensitive to the presence of methane and carbon monoxide gases. If the birds died, the miners headed for the surface. Historically, immigration policy has functioned as the canary in the coal mine for the U.S. economy. As the Great Depression descended upon the nation early in the 1930s, thousands of immigrants from Mexico (including some U.S. citizens) were rounded up and deposited over the border. Later, in the labor shortage created by World War II, the United States imported Mexican workers. Most recently, immigration became a hot-button issue in the Great Recession, quieted down as the economy ticked upwards and flared up again when it became evident that portents of recovery were premature. According to the NCSL report, a record number of 1,592 immigration bills were introduced this year in the 50 states and Puerto Rico.

Despite all this activity, states are struggling to address immigration issues effectively in the absence of a national policy. "The last thing we need is 50 different sets of immigration laws," said State Sen. John Watkins (R) of Virginia last week at a news conference following the release of the NCSL report. But that's the direction in which the United States is heading unless blocked by the federal courts. Most of this year's omnibus bills face legal challenges likely to hinge on the judicial fate of Arizona's SB 1070. The key issue in the Arizona case - and by extension all the others - is the Obama administration's claim that the federal government has exclusive jurisdiction over immigration policy. On this basis, the administration persuaded a federal judge in Phoenix and the 9th Circuit Court of Appeals in San Francisco to strike down the provision of SB 1070 allowing police to check the immigration status of persons they detained. Arizona Gov. Jan Brewer (R) has appealed to the Supreme Court to overrule the lower courts.

Meanwhile, the administration is deporting illegal immigrants at a record rate. More than a million illegals have been deported during Obama's presidency, with the spike largely driven by deportations of people stopped for drunk driving or other traffic violations, according to an Associated Press analysis of data provided by the U.S. Immigrations and Custom Enforcement (ICE). The administration has been deporting traffic violators at more than twice the rate of the Bush administration, according to the AP analysis. The widespread scale of deportations has provoked a backlash in such Democratic-leaning states as Illinois, New York, and Massachusetts, where liberals accuse Obama of ignoring his campaign promise to focus on deporting "the worst of the worst." These states and several communities in other states have stopped cooperating with the Secure Communities program, which uses a federal database to help police identify illegal immigrants among those charged with local crimes or traffic violations.

That backlash has at last prompted some reaction from the Obama administration. Last week the Department of Homeland Security announced it would begin practicing "prosecutorial discretion" in these cases, suspending deportation against minor offenders and immigrant children brought here by their parents and focus instead on removing serious criminal offenders.

The deportations have contributed to a decline in illegal immigration, already on the wane because of a shortage of U.S. jobs and stricter border enforcement. Nonetheless, there are still some 12 million pilgrims without papers in the United States, according to estimates, and illegal immigration remains a potent political issue. Polls show that an overwhelming majority of Americans want the nation to gain control of its borders and that a somewhat smaller majority believes there should be a path to citizenship for unauthorized immigrants who have long resided in the United States. This dual approach was President Reagan's policy a generation ago and would be national policy now had Congress heeded the advocacies of President Bush and Sen. Kennedy. Instead, inertia in the Oval Office and the halls of Congress had created a federal vacuum, which states are floundering to fill.

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