CQ WEEKLY – IN FOCUS
June 25, 2011 – 12:28 p.m.
By David Harrison, CQ Staff
Illinois Gov. Pat Quinn, a Democrat, will soon sign into law a bill to help the children of undocumented immigrants afford college. Just across the state line, his Republican counterpart Mitch Daniels sent Indiana in the opposite direction by signing a measure prohibiting in-state tuition for illegal immigrants.
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The Constitution gives Congress sole responsibility for citizenship issues. But federal lawmakers’ inability to pass any significant legislation in 15 years has spurred state and local officials to tackle the issue. In the first three months of this year, state lawmakers introduced 1,538 bills related to immigrants and refugees — a record number, according to the National Conference of State Legislatures. And that total doesn’t include ordinances drafted by municipalities. Until NCSL releases a follow-up report, it won’t be certain how many of those bills actually became law. But last year, states enacted 208 laws — up from 39 in 2005.
Many of those statutes take conflicting, sometimes contradictory approaches to public policy, creating a patchwork system that critics say puts an extra burden on employers and raises larger questions of fairness. These actions have spurred a diverse group of critics — among them the U.S. Chamber of Commerce, labor groups, civil liberties and Hispanic advocacy groups — to pressure Congress to reassert its authority. Some are asking lawmakers to pass uniform federal rules on employment verification; others are focused on access to education and public benefits; and nearly all are pressing for a national policy on how to handle the estimated 11 million people who have lived in the country, sometimes for decades, without legal documentation.
“The growing multiplicity of state laws should be lighting a fire under Congress to deal with this on a comprehensive basis,” said Randel K. Johnson, an immigration expert and senior vice president at the U.S. Chamber of Commerce.
The jumble of state laws is expected to get even more complicated after the Supreme Court’s decision last month upholding an Arizona statute that penalizes businesses that hire illegal immigrants. The decision noted that eight other states — Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia — have passed similar laws, and the court declared they were consistent with federal law. Far more state action may follow if the court rules on a more sweeping Arizona law, which poses the question of whether it is constitutional for states to use their policing powers to enforce federal statutes.
Many businesses hate the patchwork of rules, saying it creates headaches for those operating in multiple states. “If you’re running a national chain, that’s a complication,” says Craig Miller, former CEO of Ruth’s Chris Steak House, a national restaurant chain.
Civil rights and Hispanic groups are even angrier, predicting an upsurge in racial profiling as a result of statutes that make it a crime to knowingly rent an apartment or give a ride to an illegal immigrant — as Alabama has done — or to give police authority to check an individual’s immigration status while enforcing other laws.
“Congress has abdicated its responsibility,” says Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups.
Despite periodic pleas from President Obama, Congress is reluctant to tackle the issue. A comprehensive bill is seen as too hot to touch at a time of persistent high unemployment and drug-fueled crime and violence in border communities.
Kansas Secretary of State Kris Kobach sees nothing wrong with states enacting laws to enforce border-control laws.
“None of these state laws that I have been involved with is inconsistent with federal law. What we have right now is uneven enforcement,” said Kobach, who has advised state lawmakers. “What states do is they fill in the holes. They don’t prohibit any behavior that isn’t already illegal.”
State and local officials say they had no choice but to fill the void.
“We can’t wait for federal legislation to pass,” said Illinois state Rep. Edward Acevedo, a Democrat from Chicago. “We’re not going to stand by and wait. We know there’s other issues [Congress] has to deal with. At the state level maybe we can make the first move.”
‘Cascading Problems’
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An immigration overhaul has been on hold in Congress since 2007, when a bipartisan Senate measure collapsed. Since then, many states have tackled the issue with bills addressing employment, education and law enforcement. This means that businesses and individuals, whether legal residents or not, face different laws and enforcement mechanisms simply by crossing a state line. State legislators say they must take action to protect local interests, particularly in the face of congressional inaction.
But imposing strict state employment verification laws can hurt businesses because workers can move to a neighboring state if they feel intimidated, says Miller, now a board member of the National Restaurant Association. “Having a state solution can have impacts on the tourism industry and the convention business. The decisions that these states make can create cascading problems.”
Opponents of these state laws point to Article I, Section 8 of the Constitution, which gives Congress the power “to establish a uniform Rule of Naturalization” and to write laws to enforce it.
But the notion that Congress is the sole arbiter of such laws was rejected by the Supreme Court last month when it ruled in U.S. Chamber of Commerce v. Whiting that Arizona was within its rights to impose penalties on employers who knowingly hired illegal workers. The 5-3 opinion, written by Chief Justice John G. Roberts Jr., turned largely on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which pre-empted “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” on employers who hire illegal immigrants.
Arizona officials argued that parenthetical clause allowed them to revoke the licenses of businesses that repeatedly and knowingly hired illegal immigrants. Roberts agreed, reading the word “licensing” broadly to allow states to enforce federal prohibitions against hiring illegal workers.
The ruling will almost certainly lead other states to follow Arizona’s example of mandating employment verification. “Arizona set a marker down which gave a signal that all the other states could create their own employment verification systems and our members could face potentially 50 verification systems across the states,” said Johnson of the Chamber of Commerce, which was part of a coalition that challenged the law in court.
Legal observers say the decision does not necessarily indicate how the court will rule on the far more sweeping Arizona law, known as SB 1070, that empowers law enforcement officials to check the immigration status of people they stop for other reasons. Since Arizona state officials made headlines when they passed that get-tough law in 2010, five other states have followed suit.
“The court’s narrow ruling found that [the Arizona law] was consistent with Congress’ express intent to allow states to maintain their traditional role in licensing decisions,” said Angela M. Kelley, vice president for immigration policy and advocacy at the Center for American Progress, a liberal group.
Advocates for state laws see the majority’s willingness to consider a role for state and local governments as a huge opening.
“What makes supporters of SB 1070 hopeful is that in Whiting, the court is acknowledging the states as full partners in immigration enforcement in a broad sense,” said Julie Kirchner, executive director of the Federation for American Immigration Reform, which seeks to limit immigration. “That gives supporters of SB 1070 hope they will take that thinking and apply it again.”
A federal judge blocked SB 1070 from taking effect after the Obama administration brought suit against the law — a ruling subsequently upheld by the U.S. Court of Appeals for the 9th Circuit. Arizona officials say they will take the case to the Supreme Court.
Spur to Congress?
There is some interest in Congress in taking up a series of narrowly focused laws, instead of a broad overhaul that would almost certainly generate a political outcry. House Judiciary Chairman Lamar Smith, R-Texas, introduced a bill this month requiring all U.S. businesses to use an online federal database, called E-Verify, to confirm that employees are legal. Smith said the renewed attention on state E-Verify laws could make it easier to pass his bill, because a national law “makes it more consistent” — an assessment shared by the Chamber of Commerce, as well as supporters of tougher national enforcement measures. His bill would pre-empt state laws like those in Arizona. “Both the open-borders business folks and the immigration hawks have an interest in trying to work out a deal to come up with a national E-Verify mandate that everyone can live with,” says Mark Krikorian, executive director of the Center for Immigration Studies, which seeks to reduce immigration.
Iowa Republican Sen. Charles E. Grassley, ranking member of the Judiciary Committee, introduced a similar bill in the Senate. But the bill’s prospects as a stand-alone measure are uncertain in that chamber. Senate Democrats included employment verification in a comprehensive bill introduced last week that has almost no chance of passage.
Senate Democratic Whip Richard J. Durbin of Illinois says he hopes that efforts in some states to provide in-state tuition to illegal immigrants will give momentum to his long-stalled bill to offer legal status to some college students and to people who serve in the armed forces. That bill passed in the House last year, when Democrats were in the majority, but fell to a filibuster in the Senate.
“There’s one thing that states cannot offer. And that’s what we’re talking about — giving these young people legal status and peace of mind so they can grow up and make America a better nation,” Durbin said.
Lawmakers in a dozen states have granted in-state tuition to illegal immigrants — a policy decision that became more secure when the Supreme Court declined June 6 to hear a case challenging a California law that grants tuition breaks to illegal immigrants as long as they attend a California high school for at least three years and also graduate. The court’s action could lead other states to introduce similar bills.
Oklahoma has gone the other way, rescinding in-state tuition in 2008. Another five states explicitly bar illegal immigrants from receiving in-state tuition, and two forbid illegal immigrants from attending certain state higher institutions at all.
There is agreement among some senators of both parties that the thicket of state laws should nudge Congress to tackle immigration again. Sen. Lindsey Graham, a South Carolina Republican and a supporter of the 2007 measure, said Congress needs to provide “some relief to the states.”
“I hope it would impress upon Congress that we need to act for the good of the nation here because you can’t have 50 separate solutions,” he said.
New Jersey Sen. Robert Menendez, a Democrat, called the high court’s Arizona ruling “a further example of Congress’ failure to enact comprehensive immigration reform that is leading to a patchwork of immigration laws.”
But what shape a national immigration overhaul proposal might take — if there is one at all — is unclear. Neither party has shown itself willing to move from its starting position. Smith, for instance, said he wants the E-Verify measure to pass without compromise. And Durbin winced when asked about combining his bill with Smith’s. “I don’t know about that,” he said. “I’d have to wait and see how that works out.”
The looming 2012 election season makes that kind of dealmaking increasingly unlikely. Grisella Martinez, director of policy and legislative affairs at the National Immigration Forum, predicts “a much more highly charged election or pre-election atmosphere” after the August recess.
That will probably lead to more inaction in Congress — and continued action in the states.
Kansas’ Kobach says he’s working with lawmakers around the country in preparation for next year’s legislative sessions. He’s not too worried about the implications for businesses and others. “You’ve always had states that have tried to experiment or adopt standards that are better for their state,” he said.
Faced with long odds, overhaul advocates are tamping down expectations and taking the long view. “In the end certainly Congress will be required to act because of the patchwork of enforcement,” Henderson says. “But it still may take some time before that occurs.”
Any immigration overhaul bill introduced this year — even if unsuccessful — would lay the groundwork for next year, or the year after that, says the Chamber’s Johnson.
“I would say introduction of a bill and a markup would be a big step.”
FOR FURTHER READING: Smith’s bill is HR 2164; Grassley’s bill is S 1196. Obama approach, CQ Weekly, p. 512; legislative outlook, p. 109; 1996 law (PL 104-208), 1996 Almanac, p. 5-3; 1986 law (PL 99-603), 1986 Almanac, p. 61.
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