Immigration is a complex issue. The federal government has primary policymaking authority according to U.S. Constitution and Supreme Court decisions. Nevertheless, failure to fix a flawed system has tempted state efforts.
Last year, Gov. Gary Herbert talked about calling the legislature into a special session to address immigration. Then, Arizona passed the enforcement-only law SB1070. Local and national debate became hostile.
Herbert wisely called off a special session; the timing was bad. Immigration policy should not be rushed. A Utah version of reform could wait until 2011.
In July, important stakeholders met for a roundtable discussion on immigration. The meeting did not result in a plan, but some general ideas emerged:
1. Immigration is a federal issue.
2. The federal government has failed to act.
3. Some industries need reform and access to immigrant workers.
Herbert called for a "Utah solution" on immigration. The search was on. While some proposals attracted considerable attention, they needed revision for constitutional, economic and logistical reasons.
The legislative race began on Jan. 24. On Jan. 26 the legislative site showed 13 proposals that could directly affect undocumented immigrants.
Two have been abandoned, but revival can occur. Lawmaking is not pretty.
1. State work permits for undocumented workers. Legislative attorneys found two proposals with state work permits violated a federal law that prohibits unlawful employment of unauthorized aliens. Requested federal waivers cannot cure this defect. This is unconstitutional. It would be expensive.
2. Mandating immigration enforcement for state and local police. In Arizona, a similar law was found unconstitutional as interfering with federal prioritization of immigration resources and as placing burdens upon lawful immigrants. Fiscal analysis shows the bill would cost many millions of dollars.
3. Ramp up immigration status verification (E-verify) for new employees. E-verify mostly is a voluntary program at the federal level. Last year, Utah made the program obligatory for employers with at least 15 employees, but no penalties applied. The proposal would expand E-verify to employers with at least five employees and apply strict penalties. There are constitutional issues. Fiscal analysis indicates a cost of $2 million from 2012 to 2013.
. Repeal of a law that allows qualifying undocumented students to pay resident tuition rates at public colleges and universities in Utah. This would make tuition prohibitively expensive for these students. The proposal is constitutional, but it would be unwise to repeal a policy that mostly works to encourage education and progress for people who have been and are part of our society. Addressing the challenge of undocumented immigration need not be cruel.
5. Request that the federal government address national and state immigration issues or "grant authority to the states to resolve the immigration policy challenges within their own borders." Though it could be constitutional, this would make immigration policy vary from state to state. That seems illogical.
Some immigration proposals are "numbered by title without any substance." At least one legislator is trying to piece together parts of various proposals into an omnibus bill. The pace is frenetic.
Last summer, Herbert suggested a carrot-and-stick approach to immigration. Legislative attorneys have found the carrot parts of proposals unconstitutional, so only the stick remains.
Experience suggests stick approaches are problematic. The enforcement-only approach in Arizona has reportedly cost the state hundreds of millions of dollars in lost business. Perhaps more important, it has exacerbated social tension and caused economic disruption.
Phoenix Mayor Phil Gordon was recently quoted in a Southern Poverty Law Center Report: "The only people better off for [Arizona's SB 1070] are political opportunists who want to use stereotypes and distortions to make a name for themselves."
Current Utah proposals mostly are unconstitutional and expensive. A hasty fix forced through the Legislature would be unwise and disruptive.
The U.S. Constitution and Utah taxpayers are important even when inconvenient. Utah legislators should lay off immigration and insist on federal reform from the United States Congress. Measured action requires patience.
Mark Alvarez is an attorney from Salt Lake City and a member of the City Library Board.
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