Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen.  While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.  

TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple:  Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn.  With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).

That Was the Week That Was came reverberatingly to mind with the news of the last seven days.

The week began with the airing of a surreptitiously recorded video of presidential candidate Mitt Romney wishing out loud to an audience of wealthy contributors that, if his dad, George, the late Michigan governor, had not been born in Mexico of an American mother and father but instead of "Mexican parents, I'd have a better shot at winning this. I mean, I say that jokingly, but it would be helpful to be Latino." As the week proceeded, his campaign staff had to walk back Romney's claim that he'd never met anti-immigrant lawyer and father of AZ's SB1070, Kris Kobach (according to CNN, "Romney and Kobach have, in fact, met before at campaign events — but not in formal policy meetings”). The week ended with the resolution of a controversy stirred up by Stephen Colbert suggesting that the candidate had applied tanning spray before his appearance on Univision as a pander to its Latino viewers. The truth is that Romney's Ricardo Montalban look, as Univision has confirmed, came at the heavy hand of the network's make-up artist who daubed on too much "MAC Studio Fix powder and foundation." 

President Obama likewise had his turn on the Univision hot seat, admitting (duh!) that his biggest failure was failing to pass comprehensive immigration reform, and splitting hairs with the moderators over whether he had promised or not promised to do so (or merely try) in his first year in office or first term.

Another laughable moment came when the White House issued a statement and the State Department a video claiming how much easier than perceived it now is to visit America. Yes, they are right that more consular resources, enhanced customer service training and better queuing at ports of entry, among other measures, will improve the inbound traveler's experience.  But nothing will fundamentally create better first impressions until minimal standards of fairness are established for consular visa interviews and CBP interrogations. Yet another Administration official, Homeland Security Secretary Janet Napolitano, surprised many with the risible observation that immigration hasn't been much of “a linchpin, red hot issue" in the presidential campaign.  Tell that to the 10 million Hispanic-Americans whose votes may be suppressed this year.

Congress too contributed to the week's fatuous merriment with the "BRAIN-STEM" follies.  Senator Schumer proposed a new BRAINS act which would allow a smart foreigner with family members to enter every time we deport an equivalent number of permanent residents. In the other chamber, House partisans bickered and failed to pass a green-cards-for-STEM-students bill that failed -- as Bill Clinton might say -- over "arithmetic."  Republicans wanted to eliminate 55,000 Diversity-Lottery visas to provide the immigrant-visa currency for the additional Science, Technology, Engineering and Math graduates from U.S. universities who would receive green cards, while the Democrats wanted to add, not subtract, green-card quota numbers for additional STEM graduates.

On the international front, an Italian court affirmed criminal convictions in absentia of 22 Americans (allegedly CIA operatives) by tossing a creamy tiramisu (a confection translated as "lift me up") at a Bush-era immigration policy known as rendition -- the act of removing (airlifting?) individuals from one country and forcibly immigrating them to another where they are likely to be tortured.  In other judicial news, a federal judge in Arizona lifted an injunction on the surviving piece of SB1070, known as the "show me your papers" provision, which many fear will play out as a "driving or walking while Hispanic" basis for arrest and removal.

The week's levity aside, some important and serious things happened as well:

• 600 city and county government agencies in Georgia reportedly face penalties for failing to comply with the state's mandatory E-Verify enrollment law, an analogue to the Arizona statute upheld last term by the Supreme Court.
• Reports like this one, entitled "Time to reject false choices and fears about immigration: Basic freedom of movement across borders is fundamental to human dignity," added to the body of work showing that economic prosperity and human rights can be married successfully by revising outdated immigration laws.
• The pejorative, "illegal immigrant," continued to be lambasted by such courageous DREAMers as Jose Antonio Vargas and others as a grammatically and legally incorrect term meant to demean and demonize a population.
• Rinku Sen of Colorlines wrote a must-read piece entitled, "Immigrants Are Losing the Policy Fight. But That’s Beside the Point," emphasizing the importance of real-world stories on immigrants and immigration as the best way to win over American hearts and minds.
• R. Blake Chisam issued a report through the National Foundation for American Policy, "DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals" -- ironically, the very same H-1B workers entitled to DOL's statutorily mandated labor protections.
• Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.

Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.  

As economic opportunities appear to diminish in the United States, global mobility management has become the hottest trend in migration. 

In the globalized world, executives, entrepreneurs, investors and talented workers are voting with their feet and moving to places where economic opportunities entice.  (For background, see my recently published article, "Global Mobility Management - A Primer for Chief Legal Officers and HR Executives," co-authored with in-house counsel, Mareza Estevez of Cognizant Technology Solutions, and Peter Schiron, Jr., of Deloitte LLP, available in British and American English.)

One way I follow trends in global mobility is by using Twitter and other social media, gushing fonts of useful information often hidden within torrents of dreck and dross.   (An enlightened writer, Maria Popova, who maintains a website called Brain Pickings, considers the thoughtful filtering of valuable Twitter content as a new form of creative authorship, dubbed "content curation."  I riffed recently with Ted Chiappari on Popova's theme in a curation of our own, a découpage depicting developments in U.S. employer sanctions entitled "Informational Abundance and Scarcity in Immigration Worksite Enforcement.")

Developments in global mobility are seen, for example, in a recent social media thread spotlighting a new amendment, effective shortly, to the immigration laws of the United Arab Emirates.  The UAE will soon allow investors of at least Dh 1 Million (a bit more than U.S.$ 272,000) in real estate to receive residence visas for thee years instead of the current six-month period of stay. The visa change "is expected to help revive the depressed real estate market, which is looking at a huge over-supply in the coming months," according to a local report.  Already, Dubai shares and UAE property values have increased.  The Emirates' real estate investor category will reportedly make life easier for holders of this visa, "such as [when] applying for a local driving [license], [and] personal loans and getting admission to schools."

The new UAE investor visa came to mind as I reflected on two recent business and family trips to Detroit, my hometown, where  I spent my fondly remembered childhood on the gritty streets of its inner city (near Gratiot and Mack Avenues).  Sadly to me, however, my boyhood home of the 1950s-1960s, and virtually all of the structures on the block where I lived (save for a since-erected CVS pharmacy), were long ago demolished.  A city with a population that peaked at about 1.8 million in the 1950s, Detroit last year numbered just over 700,000 inhabitants, and contributed to Michigan's sad distinction as the only state to have "suffered an overall population decline between 2000 and 2010." 

Some in the city are making plans to relocate residents and to group homes together, that is, to "shrink," as the New York Times phrased it in an April, 2011 story.  Others are trying new ways to put the economic mojo back in Motown, as the Wall St. Journal and Forbes reported recently. As a letter writer commenting on the Wall St. Journal piece observed, however:

A city's real strength is its people:  entrepreneurs who can imagine, hard workers who can produce, creative types who can inspire and families who can build. People came to Detroit for one reason: jobs. People will return for the same reason. Figure out how to create these jobs, and the rest will follow.  

Michigan's Republican governor will soon make a major speech in Detroit on "Immigration and Michigan." I have no idea what he will say. Presumably, it will be on "Global Michigan," an effort by the "Michigan Department of Civil Rights and the Michigan Economic Development Corporation to find new ways to encourage more highly educated immigrants . . . to come to Michigan to work and live," beyond merely the "cool factor" luring the adventurous, young and artsy to Detroit.   

If I were ghostwriting his talk, I'd suggest that he urge the Obama Administration to amend existing U.S. Citizenship and Immigration Services regulations to establish a new category of employment authorization (the power to grant work permits inherently rests within the Executive Branch, and numerous administrations before this incumbent have long exercised that authority). 

This initiative could be modeled after the much heralded U.S. Department of Education program, Race to the Top, and dubbed the "Race to the EAD" (Employment Authorization Document).  It would allow states like Michigan to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs as well as state-recommended recipients of deferred action -- after careful screening for security and criminal risks -- to obtain a renewable EAD in reasonable increments (say, two or three years at a time). 

The chosen Race to the EAD projects would be periodically reviewed by government auditors in order to determine the extent to which EAD holders as a group have meaningfully followed through on their commitments and thereby contributed to economic growth, thus entitling them to receive EAD renewals. 

A state whose proposal is federally approved in the Race to the EAD program, as I envision it, would likely be very attractive to foreign citizens because it would not only allow for work permits based on investments and entrepreneurial activities but make life easier for the EAD holder when "applying for a local driving [license], personal loans and . . . admission to schools," much like the UAE property investor category. 

I've blogged before on this topic, but I'm clearly not the first to conceive it.  Financial reporter, Ezra Klein, of the Washington Post was an early espouser as was the State of Utah with its new guest worker program that, to be sure, will require a federal waiver.  Earlier still, the Race to the EAD concept is essentially a modern-day variation on a previous federal inducement to take down roots and prosper through property improvement and investment, America's Homestead Act. 

A more recent precedent also comes to mind.  Despite vehement protests from the right, President Obama took bold steps to save the domestic auto industry, and thereby help a cluster of states, including Michigan, preserve and create numerous jobs. Candidate Romney's non-credible protestations notwithstanding, U.S. auto companies in Michigan and other states are now on the mend and beginning to prosper.  A similar demonstration of executive chutzpah in launching, by regulation, a Race to the EAD program, would likewise spawn a virtuous cycle of rebirth and revitalization in my downtrodden hometown and many other job-starved communities throughout America.   

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[Blogger's note:  The photo above is of the Groeschel Building.  The corner store in the building was a barbershop where I got my hair cut by Joe Messina, a buzz cut in the summer, a bit longer the rest of the year.  Photo source: Detroit: The History and Future of the Motor City, maintained by University of Michigan Sociology Professor, Reynolds Farley.]

The U.S. Supreme Court freed a herd of immigration "elephants [hiding] in a mousehole" on May 26. That's when five Justices used a four-word exception to the Immigration Reform and Control Act of 1986 (IRCA) -- an act which, among its extensive provisions, banned the employment of foreign citizens whom the employer knows lack work permission -- to trample the immigration landscape. The majority ruled, based on the exception, that IRCA is not the final or sole word on the extent of punishment for unauthorized employment. 

Relying on an IRCA exception for "licensing and similar laws," the 5-3 majority decided that Arizona may use the threat to revoke a business license as a means to punish AZ employers for the unauthorized hiring of foreigners and to require all the state's public and private employers to enroll in the Feds' E-Verify online work-clearance database. 

Among the dissenters, Justice Sonia Sotomayor challenged the use of this squib of an IRCA exception as a means for the majority to undermine the "carefully constructed [and] uniform federal scheme for determining [unauthorized employment]." She cited an earlier case which observed that Congress "does not . . . hide elephants in mouseholes." (Ironically and perhaps poetically just, all of the Justices in the majority had been appointed by presidents of the Republican party, whose avatar is the pachyderm.)

What does the decision, U.S. Chamber of Commerce v. Whiting, mean for large and small employers?  Here are my predictions (I welcome any comments or critiques below or on my Twitter page): 

1.  Expect that mandatory E-Verify will spread to more states. As shown in this link, states are all over the map on their divergent requirements concerning E-Verify. Some -- like AZ, SC and MS -- require it of all employers.  Others limit it to public entities and state contractors.  The Supreme Court's decision essentially green lights the states to regulate facets of immigration compliance that fall within traditional state police powers. The only requirement is that the state law find a connection to the broad police power over licensing. In essence, what was largely an exclusively federal domain, will now expand -- with the Court's blessing -- into the inner workings of most businesses. Expect state and city micro-management of immigration to the Nth degree. 

2.  Expect some states to require E-Verify use as to current workers. As many states rush to enact laws mandating E-Verify, it would not be surprising if one or more extend its scope.  Except for certain federal contractors and subs, E-Verify may not now be used to verify the work eligibility of current employees.  While the extension of E-Verify at the state level to current workers would technically violate the terms of the E-Verify Memorandum of Understanding that employers must sign, such a stretch would not be a surprise.  Consider Utah's recent legislation which adopted a guest worker program notwithstanding that -- at least until the Whiting decision -- the authorization to grant work permission had been seen as exclusively a federal power. Note as well that Florida's governor has issued an executive order expressly encouraging the state's employers to use E-Verify to check the work status of current employees.

3.  Expect higher rates of discrimination claims.  The dissenters in Whiting predict that employers will follow the path of seemingly least resistance by becoming hyper-vigilant in inspecting job applicants' documents of identity and work eligibility while finding subtle or overt ways to resist hiring persons who look or sound foreign or demanding to see specific documents or more documents than legally required.  Although the majority noted that such discriminatory acts are already prohibited at the federal level, the likelihood is that the immigration agency charged with antidiscrimination prosecution and enforcement will be understaffed and short on resources to deal with the anticipated flood of complaints of unfair or illegal practices.    

4.  Expect more court battles over the extraterritorial reach of state immigration laws.  What happens when poorly phrased state immigration laws come into contact with multi-state employers? Must a multi-state employer use E-Verify only as to its AZ new hires, or does AZ's E-Verify law require that company to use the online system as to new employees nationwide? What will courts decide if a company chartered in AZ loses its license to do business in that state, and as a result, is disqualified to maintain its licenses to engage in business in other states?  These are but a few of the foreseeable claims likely to congest the state and federal courts as state immigration laws proliferate after Whiting.

5.  Expect a public backlash over state enforcement of the immigration laws.  The devastating tornadoes in Missouri and Alabama likely caused the loss or destruction of many U.S. citizens' documents of identity and work permission. When such citizens try to pick up their lives by moving to other states (where mandatory E-verify is in force), how will they prove their right to work?  Such citizens are not likely to go gently or quietly into the good night. They will scream to high heaven, and the media will listen and publicize their complaints.  Other citizens, though not facing the effects of natural calamities, will likewise be erroneously rejected by E-Verify, as the National Immigration Law Center predicted last April in testimony before Congress. They too will rise in protest if denied employment to which they are entitled with jobs already hard enough to find in the current economy.  

6.  Expect some states to back away from immigration enforcement and instead seek federal waivers for immigration benefits. Just yesterday, Republican Gov. Rick Snyder of Michigan, perhaps signalling a trend in the opposite direction, expressed his opposition to an AZ-style immigration enforcement bill, noting that it would be "divisive" and bad for business.  As noted above and at length in this blog before, Utah has passed legislation creating a guest worker visa program (that will require a Federal waiver).   

7.  Expect that states will seek more snitch visas or favorable discretion for stool pigeons from the federal government.  The "S" visa category (what we in the trade call the Snitch Visa) allows any state or local law enforcement official to seek special immigration benefits, including a work permit, to allow a foreign citizen to participate as a witness in a criminal prosecution.  Federal immigration authorities can also exercise prosecutorial discretion and grant work permission at the request of a state or local police agency or prosecutor.  In states where immigration policing is a high priority, just as with the justly maligned Secure Communities program, criminal prosecutions under state immigration laws will likely generate requests for special privileges and leniency to foreign workers who agree to rat out alleged immigration violations of their employers.

8. Expect a battle royal in Congress over mandatory federal E-Verify. The business and pro-immigrant communities will not take lying down the likely GOP push to make E-Verify mandatory for all employers nationally.  While this push, if enacted, would take the wind out of the states' sails, opposition to the move would point to the persistently high rates of false positives and negatives in E-Verify and the budget busting consequences of a national mandate.  

9. Expect busier days ahead for immigration lawyers.  Notwithstanding that the demand for H-1B visas this year has been underwhelming, lawyers practicing immigration law have reason to be hopeful that business will pick up.  The already mind-boggling complexity of federal immigration law will become more complicated, perhaps by a factor of 50, as the states get into the act. This quantum leap doesn't take into account the cities and regional governments that may have politicians, even now, planning a Barletta-like push for fame and higher office by espousing "mouse-that-roared" immigration ordinances.

10.  Expect that Congress or the President will act. Before we reach the point of proliferating and conflicting 50-state and countless-municipal "solutions" to America's dysfunctional immigration laws, this blogger -- always a glass-half-full type -- envisions that statesman-like behavior or public outcries will cause action at the federal level to end the nonsense. Businesses cannot function, and lawfully-authorized American citizens and residents cannot find jobs, if we balkanize our immigration polcies. I say, fingers crossed, that cooler heads will prevail. 

Ever since studying Constitutional Law years ago, I've never really resolved in my mind the tension between federal supremacy and states rights. Most days, I see the need for national uniformity of law and lean toward federal power.   At other times, I appreciate the benefit of sensitivity to local conditions and the wisdom of allowing the states to serve as 50 laboratories to develop what I hope might be enlightened solutions to daunting problems.

The issue arose again this week in an offhand reply I Tweeted to an anonymous, conservative-leaning polymath, who carries the Twitter name "euandus," in response to his blog post (with identity still masked) entitled, "Immigration and Federalism in the U.S.: Should States like Arisona (sic) Participate?"   

The federalism/states-rights conundrum surfaced again in the Twitterscape, this time with a thoughtful blog post by "Chakazoid" -- a likewise unidentified inhabitant of the virtual world -- who wrote, "My Crazy Theory on Immigration."  Chazkazoid, an apparently precocious college student, wondered aloud why Georgia, in trying to outdo Arizona, proposed a Jim Crow anti-immigrant bill that suddenly became "more lenient" (his supposition: "to protect the agriculture industry").

I've viewed these state excrescences as affronts to federalism, and suggested as much to euandus, by noting that having "50 state versions of immigration laws would be as dysfunctional as were the Articles of Confederation." My hope has been that the U.S. Supreme Court in the already-argued case of U.S. Chamber of Commerce v. Candaleria, will scuttle Arizona's efforts to neuter the federal preemption doctrine by attempting to regulate immigration.  After reading the transcript of oral argument in Candaleria, however, I've become less hopeful that preemption will prevail.

The prospect that the states might be given free reign to legislate in the immigration domain chills my spine like an icicle.  (It would be a mess for all of us if we were required to carry internal passports and get visas to go from state to state. And, yikes, how would I ever learn 50 state immigration codes?) 

Then I read an op-ed by Jason L. Riley in the March 5 Wall Street Journal, "Utah Seeks a Better Way on Illegal Immigration," that gave me cause for modest hope.  Utah state Senator Curtis Bramble, a Republican from Provo, has sponsored a bill with a good chance for passage that would do what has long stymied the federal Congress.  Sen. Bramble's bill would permit undocumented immigrants in the state who've passed a criminal background check to pay a fine of up to $2,500 and apply to the Utah Department of Workforce Services for a temporary work permit. The bill, assigned number 288 (as amended), is premised on the Utah Compact.  The Compact rests on five principles:

FEDERAL SOLUTIONS Immigration is a federal policy issue between the U.S. government and other countries—not Utah and other countries. We urge Utah’s congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.

LAW ENFORCEMENT We respect the rule of law and support law enforcement’s professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.

FAMILIES Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.

ECONOMY Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah’s immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.

A FREE SOCIETY Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.

A leading proponent of Utah Bill 288, Natalie Gochnour, Chief Economist for the Salt Lake Chamber of Commerce, explained her support to Riley in his Wall Street Journal op-ed: 

Utah has a growing economy that's ready and able to put people to work. Our business leaders are saying, 'Let's not diminish our labor supply.  Let's not reduce our customer base.  Let's not raise business costs. Let's not detract from outside investment, convention business [and] tourism.'

Of course, to be effectual, Utah's guest worker program would likely need a federal waiver (unless Candaleria is decided in Arizona's favor). Existing precedent for the delegation of authority over immigration benefits already exists with the federal government's Conrad 30 program, which allows each state to sponsor physicians for waiver of the two-year, home-country residence requirement of the J-1 Exchange Visitor visa category.  (Utah, by the way, is not alone in proposing that states mobilize to gain the ability to issue internal work visas, as Ezra Klein of The Washington Post has argued persuasively.)

While Utah moves forward on a humane and pragmatic state-level strategy, Chakazoid, ever the optimist, still harbors hope for a federal solution:

Whatever the underlying issue for the slow progress on immigration, I have faith that we will come to our senses. We should be more welcoming to immigrants from every country and find a way to once and for all deal with the 12 million illegal immigrants already here. The solution should be pragmatic, involve a comprehensive reform, and benefit our economy, along with a bipartisan effort. We may sit here and play the blame game, as congress has been doing for the past decade, but it is this very game in which America is losing.

For my part, I see less reason for optimism.  I join in the "stinging rebuke" leveled in the March issue of Arizona Attorney by my former partner and recently-retired Chief Counsel of USCIS, Roxana Bacon, who candidly decried the "legislative irresponsibility and the lack of executive leadership" of official Washington in the passage below (emphasis mine):

Forget that Comprehensive Immigration Reform (CIR) died a premature death last spring. Charles Schumer and Lindsay Graham, two heavy hitters, refused even to introduce the modest CIR legislation, drafted largely by DHS, because they were unable to get a single other Senator to sign on. Leadership, anyone?

The White House was mostly MIA, with attention so glued to other matters that even a rousing march to the Capitol by Dream Act kids and thousands of advocates merited no real action.  Indifference, anyone?

. . . [USCIS] stayed underground, armed with bureaucratic plans and a PR machine rather than visionary policy statements or practical field directives that would move us forward. Timidity, anyone?

However, not everyone stood down.  CBP and ICE went into overdrive to detain more people, remove more people, and exercise less discretion than at any time in our nation's modern history.  . . . When advocacy groups questioned this 180-degree pivot from the campaign, they were told that no reform would be politically feasible until the anti-immigrant politicians were convinced that this Administration was tough on immigration.  The groups who hijacked the immigration conversation will never be appeased.  Not a good strategy. . . . [Reform] by increased enforcement was hardly the campaign promise. Duplicity, anyone?

Roxie Bacon likewise looks to the states "as the most logical and invested laboratories to sort through the complications inherent in deciding what a vital and secure immigration law should look like," not to mention the courts, "emboldened advocates, who stand up to meanness and indifference in the face of human suffering and need, and [to] inventive lawyers representing them."

It's not too late for the Federales in DC to renounce their "collective ostriching," as Roxie describes their posturing.  Perhaps now, with the economy in rebound, unemployment finally less than 9%, and the states at the ramparts poised to usurp the federal role in immigration policy, our pusillanimous "leaders" in Washington will at last take pragmatic and humane steps to pass comprehensive reform, or at least grant Utah and other states the right to fix our dysfunctional system. 

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POSTSCRIPT In a hectic day and night of amendments and maneuvers, the Utah legislature passed two immigration-related measures that together comprise comprehensive immigration reform at the state level.  One of these, HB 116, creates a Utah guest worker immigration program. The other, HB 497, is said to focus on serious crimes.  The federalism/states-rights tension continues.