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.