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 firstname.lastname@example.org