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Utah’s New Immigration Law

by STEWART J. LAWRENCE

Utah’s deepening internal debate over how best to handle its large  illegal alien population is raising interesting new questions about  the proper dividing line between federal and state authority over  immigration matters.  It’s also threatening to cause major political  headaches for the Obama administration.

The Justice Department, in its recent lawsuit against Arizona,  claimed that the Constitution gives the federal government nearly  exclusive authority to make the nation’s immigration laws.  Accordingly, states have no right to pass their own  enforcement laws that are more stringent than federal policy,  especially if such laws might infringe on the rights of other citizens, or the rights of the aliens themselves.

But what if a state wants to pursue an enforcement approach that is  far less strict than current federal policy?    And what if, in  addition, it wants to devise its own visa policy to allow illegal  aliens to be conditionally legalized as “guest workers”, so that they  can openly labor and pay taxes to the state?   Doesn’t this law also  contravene federal authority, and isn’t it also unconstitutional?

Amazingly, that’s just what Utah is now proposing, after its  Republican governor intervened to prevent the state legislature from  passing its own version of an Arizona crackdown law.  Momentum behind a  copycat law in Utah was slowed after a federal district court judge  ruled that the heart of Arizona’s law, SB 1070, was likely  “pre-empted” by federal law, and issued a temporary injunction  blocking SB 1070’s full implementation.

But rather than dropping the matter, the state’s governor decided to  convene a roundtable of key stakeholders to come up with a better  approach.  Out of these discussions came the proposal for a state  guest worker program that would effectively bypass, or at least run  parallel to, current federal visa policy.

The basic idea is that Mexican and Utah state officials would sit down  to discuss their respective labor situations, and out of these  discussions a system for regulating the importation of Mexicans into  Utah would be established and administered more or less jointly by the  two sides.

There’s only one problem:  there’s no way to square this system with  current federal law.  In fact, it’s far more of a threat to the  principle of federal authority than Arizona’s law, which does not  directly impact decisions regarding who is granted legal entry into  the US.   It’s almost as if Utah is establishing its own foreign  policy with Mexico – at least in the realm of immigration.

Naturally, the Utah business community loves the idea, because it  provides guaranteed access to cheap labor.  And many immigrant rights  supporters think it gives Mexicans a leg up.  Anyone with a visa won’t  be deported, and may eventually get a shot at permanent residency,  though the approach currently being discussed doesn’t explicitly  provide for that possibility.

The federal government currently administers two small-scale guest  worker programs, one exclusively for agricultural workers, known as  H-2A, the other for other unskilled occupations like landscaping,  shrimping, and tourism, known as H-2B.   About 100,000 workers are  “imported” annually to work in these occupations, but they are required to  leave the country after their temporary work contracts expire.

In theory, the Utah program would be broadly compatible with H-2A and  H-2B,  except that state officials would be intimately involved in  determining who qualifies for a visa, and under what conditions they  could work.  That completely flies in the face of the elaborate  federal institutional procedures for managing H-2A and H-2B, in which  state officials play an ancillary role at best.

What’s fascinating, of course, is that Utah is making the same defense  of its program that Arizona is:  because of the void in federal  policy-making left by the failure of the US Congress to reform the  nation’s immigration laws, Utah has to act to protect its own citizens  from the consequences of that failure.

Only now the argument comes more from the more liberal or “pro-immigration”  side of the debate.

Not surprisingly, the Obama administration has said nothing about how  it plans to approach the Utah law.   But attorney general Eric Holder  has recently spoken out on the subject of “sanctuary” cities –  localities like San Francisco that have refused to cooperate with  federal immigration authorities in the identification and  apprehension of illegal aliens.

When challenged by conservatives to explain why the administration is  going after Arizona, but not San Francisco, Holder said there was a  “big difference” between localities that were “going beyond” federal  law and those that were only “passively resisting” it.   But that  argument won’t hold up in the case of Utah, whose challenge to federal  authority goes far beyond the realm of law enforcement alone.

In fact, Utah may still decide to pass a less aggressive Arizona-style  enforcement law as a complement to its new guest worker scheme.  And  last spring the governor also asked the legislature to mandate that  the state’s employers utilize the federal workplace enforcement system  known as E-Verify, to prevent illegal workers form getting hired.  Eleven other  states, including Arizona, are doing the same, even though the program, at the  federal level, is still largely voluntary

If all of these measures pass, Utah would become the first state in  the nation to offer its own model for “comprehensive” immigration  reform – a guest worker program, plus stepped up police and workplace  enforcement –  probably the broadest challenge to federal immigration  authority in the nation’s history.

But one item is missing:  a sweeping legalization program that would  ensure that all aliens currently in the country – or at least  Utah – would get green  cards.

Could this be the future GOP model for immigration reform, once  Republicans re-gain control over Congress in November, which now  seems likely?   Stay tuned, the US immigration debate is about to  get a lot more interesting.

STEWART J. LAWRENCE is a Washington, DC-based an immigration policy specialist.  He can be reached at stewartlawrence81147@gmail.com

Stewart J. Lawrence can be reached at stewartlawrence81147@gmail.com

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