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Immigration Law

State Net Capitol Journal: States Ease Off Immigration Bills . . . For Now

A year chock-full of budget and redistricting fights has done more than just give state lawmakers heartburn. According to a new study by the National Conference of State Legislatures (NCSL), those issues, in conjunction with the wait for a Supreme Court decision on a federal challenge to Arizona's omnibus 2010 immigration law, has also helped make this the slowest year for immigration-related legislation since 2006.

According to NCSL, which released the immigration study at its annual meeting in Chicago last week, from Jan. 1 through June 30, 46 states and the District of Columbia introduced 948 bills and resolutions regarding immigrants or refugees. That is a 40 percent decline from the 1,592 such measures states introduced in the peak year of 2011. States have also enacted a much lower number: 114 bills and 92 resolutions, 20 percent less than the 257 during the same period last year. Four states - Montana, Texas, North Dakota and Nevada - are not holding regular sessions this year.

Most of the measures have focused on a handful of areas: law enforcement, driver's licenses and IDs (accounting for 18 and 11 percent, respectively) and the use of the federal E-Verify system to check on workers' immigration status. Six states - Alabama, Georgia, Louisiana, Michigan, New Hampshire and West Virginia - adopted E-Verify requirements.

Lawmakers, however, dramatically pulled back from at least one previously popular approach.

"The Arizona-style omnibus laws have seen a clear decline," Ann Morse, Program Director for the NCSL Immigrant Policy Project.

In 2011, 30 states introduced more than 50 omnibus bills, while this year only five states - Kansas, Mississippi, Missouri, Rhode Island and West Virginia - did so. None of those states' measures was enacted. A sixth state, Alabama, amended a portion of its 2011 omnibus law (HB 56) by adopting HB 658, which, among several things, tasked police with greater responsibility to detain suspected undocumented immigrants.

At a meeting with reporters, Washington Rep. Sharon Tomiko Santos (D) and Virginia Sen. John Watkins (R), who co-chair the NCSL Task Force on Immigration and the States, said the Supreme Court ruling, which invalidated three of the four aspects of the Arizona law the Department of Justice had challenged, will likely stop other states from adopting more omnibus bills. But both also expressed doubt that this year's downward spike in immigration-related measures would carry over into the future.

"It is the first time we have seen a significant drop in our Legislature, but the numbers are still at historical highs," Santos said.

"States continue to have a high degree of interest in immigrant-related matters and there is still a strong sentiment that the federal government needs to take action on immigration policy," she added. "Until the administration and Congress do take action, I think states will continue to test new ideas."

Watkins also took note of the impact the Supreme Court case had on state actions, and how the court's ruling might now drive those efforts going forward.

"States took a bit of a pause on the issue of immigration as they waited for the Supreme Court to rule," he said. "The ruling we got is a yellow light, in that states can move forward in some areas, but not in others."

The "yellow light" Watkins referenced was the Court's upholding of the portion of the Arizona law that requires officers to demand immigration papers from detainees whom they have a reasonable suspicion might be in the country illegally. The law also requires police to check detainees' immigration status with federal officials before a suspect can be released. The court struck down three other provisions of the law: one making it a crime for undocumented immigrants to be in the state; another making it illegal for illegal immigrants to seek employment; and a third authorizing police to arrest anyone they believe has committed a deportable offense without a warrant. Other elements of the law are still being litigated in Arizona.

But Watkins said that while the Supreme Court decision will likely stop any more states from directly copying Arizona, the decision by the Obama administration in June that it would stop any further deportations of otherwise law-abiding immigrants under age 31 who were brought into the country illegally could spark even more state-level action in the future. The decision angered immigration opponents, who said the president's decision effectively enacted long-stalled federal legislation known as the "Dream Act."

"The implementation of the Dream Act regulatory schemes the federal government has pursued could provoke additional state legislation," he said. "I think it will depend a lot on the marketplace for jobs in the respective states.

Watkins further noted the ongoing negotiations between Utah and the U.S. Department of Justice over the so-called "Utah Compact," a quartet of immigration bills the Beehive State adopted in 2011 that would, among several things, create a guest worker program and an immigrant sponsorship program. The federal government would need to issue the state a waiver before those laws could go into effect.

Should the federal government grant Utah that waiver, Watkins says "there could be an onslaught at the state level aimed in that same direction."

According to NCSL, at least five states introduced similar measures in 2012.

Being an election year, Utah Sen. Curtis Bramble (R), the man behind the Compact, says the decision could take a while to come down. But, he notes, the president's recent directive could mean the state is actually inching closer to getting what it wants.

"We've always been told that it was only Congress that could take this kind of action," he says. "But clearly that isn't the case any longer. So if the president now has the authority to make this kind of decision, then he certainly has the authority to act on our waiver as well."

If not, the issue will eventually come to a head anyway. The Utah legislation has a July 1, 2013 trigger date, upon which the law is set to take effect whether the waiver has been granted or not. Bramble says that if it comes to that, lawmakers will likely just repeal the trigger action and continue negotiating. But he also warns that states are not going to stop their efforts to take control of their own immigration issues.

"Utah is a microcosm of the U.S.," he says. "States need to step up and act. If enough states fill the void, the federal government will be forced to act."


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