Click amount to donate direct to CounterPunch
  • $25
  • $50
  • $100
  • $500
  • $other
  • use PayPal
Keep CounterPunch ad free. Support our annual fund drive today!

Utah’s New Immigration Law


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

Stewart J. Lawrence can be reached at

More articles by:

2016 Fund Drive
Smart. Fierce. Uncompromised. Support CounterPunch Now!

  • cp-store
  • donate paypal

CounterPunch Magazine


Weekend Edition
October 28, 2016
Friday - Sunday
John Pilger
Inside the Invisible Government; War, Propaganda, Clinton & Trump
Andrew Levine
The Hillary Era is Coming: Worry!
Gary Leupp
Seven World-Historical Achievements of the Iraq Invasion of 2003
Paul Street
Standing Rock Water-Protectors Waterboarded While the Cleveland Indians Romped
Stanley L. Cohen
Israel: 1984 Everlasting
Michael Brenner
American Foreign Policy in the Post-Trump Era
Luciana Bohne
Crossing the Acheron: Back to Vietnam
Robert Hunziker
The Political Era of Climate Refugees
Stephen Cooper
Alabama’s Last Execution was an Atrocity
Pete Dolack
Work Harder So Speculators Can Get More
Joyce Nelson
Canadians Launch Constitutional Challenge Against CETA
John Laforge
US Uranium Weapons Have Been Used in Syria
Paul Edwards
The Vision Thing ’16
Arshad Khan
Hillary, Trump and Sartre: How Existentialism Disrobes the Major Presidential Candidates
Peter Lee
It’s ON! Between Duterte and America
Joseph Grosso
Starchitects in the City: Vanity Fair and Gentrification
Patrick Carr
Economic Racial Disparity in North Carolina
David Swanson
Public vs. Media on War
Chris Gilbert
Demo Derby in Venezuela: The Left’s New Freewheeling Politics
Binoy Kampmark
Nobel Confusion: Ramos-Horta, Trump and World Disorder
Stephen Cooper
Alabama’s Last Execution Was an Atrocity
Binoy Kampmark
Nobel Confusion: Ramos-Horta, Trump and World Disorder
Russell Mokhiber
Lucifer’s Banker: Bradley Birkenfeld on Corporate Crime in America
Ron Jacobs
Death to the Fascist Insect! The SLA and the Cops
Cesar Chelala
Embargo on Cuba is an Embarrassment for the United States
Jack Smith
And the Winner Is….
Ken Knabb
Beyond Voting: the Limits of Electoral Politics
Matt Peppe
An Alternate Narrative on Hillary Clinton and Donald Trump
James Rothenberg
Water Under the Bridge
Louis Yako
Remembering Rasul Gamzatov: The Poet of the People
Brian Cloughley
The US, NATO and the Pope
Louis Proyect
The Outsider-Insider: Isaac Babel’s Big Mistake
Martin Billheimer
Now and Then, Ancient Sorceries
October 27, 2016
Paul Street
An Identity-Politicized Election and World Series Lakefront Liberals Can Love
Matthew Stevenson
Sex and the Presidential City
Jim Kavanagh
Tom Hayden’s Haunting
CJ Hopkins
The Pathologization of Dissent
Mike Merryman-Lotze
The Inherent Violence of Israel’s Gaza Blockade
Robert Fisk
Is Yemen Too Much for the World to Take?
Shamus Cooke
Stopping Hillary’s Coming War on Syria
Jan Oberg
Security Politics and the Closing of the Open Society
Ramzy Baroud
The War on UNESCO: Al-Aqsa Mosque is Palestinian and East Jerusalem is Illegally Occupied
Colin Todhunter
Lower Yields and Agropoisons: What is the Point of GM Mustard in India?
Norman Pollack
The Election: Does It Matter Who Wins?
Nyla Ali Khan
The Political and Cultural Richness of Kashmiriyat