The States Do Immigration

Sunday, April 3, 2011 - 01:00

In the last several years, with comprehensive reform of the U.S. immigration system mired in debate, numerous states have tried to take matters in their own hands to "solve" the problem of 11 million undocumented immigrants. Pleading frustration with the glacial pace of the federal government, state legislatures, and even some municipalities have enacted their own immigration-related statutes. State laws have addressed everything from requiring employers to comply with additional employment compliance requirements to authorizing local law enforcement to question individuals they "reasonably suspect" are undocumented. These laws have proliferated throughout the country. The National Conference of State Legislatures reports that 44 state legislatures passed 191 laws and adopted 128 immigration-related resolutions in 2010, and more than 100 local governments have enacted immigration-related ordinances. The State of Arizona has led the way, enacting two controversial immigration laws in the last four years - the 2007 Legal Arizona Workers Act and last summer's controversial Senate Bill (SB) 1070 - and now considering a third, even harsher bill.

In some states, however, a more pragmatic trend may be emerging. At the most basic level, states facing fiscal crisis are beginning to question the high cost of harsh state immigration provisions. State laws that empower police to inquire about immigration status can lead to increased expenses related to arrest processing and jail, including the cost of building more facilities to hold the undocumented while they await deportation by the federal government.And states hungry for additional revenue are reluctant to follow in Arizona's footsteps, where an estimated $140 million was lost in boycotts and other business impacts of SB 1070. (States are also breathing a sigh of relief that the federal government has postponed implementation of the REAL ID Act, which would impose driver's license security standards - including immigration status checks - on state DMVs. The postponement is in part due to the financial burdens REAL ID will place on already tight state budgets.)

And in states that have enacted or are considering restrictive statutes, some are pushing back. In Florida, state legislators are working to relax an executive order signed by Governor Rick Scott that would require employers to use the largely voluntary federal E-Verify employment verification system, after business and agricultural groups, among others, protested. In Georgia, where tough immigration measures are wending their way through the legislature, business leaders have warned that the bill could have a severe impact on the state's agriculture industry. Business groups have also opposed restrictionist proposals in Kansas and Oklahoma.

In at least one state, legislators have attempted to balance tough enforcement laws with ameliorating provisions, in a kind of state facsimile of a model federal comprehensive bill. In recent days, Utah Governor Gary Herbert signed into law a package of immigration bills that includes provisions for tougher enforcement similar to Arizona's SB 1070, a labor agreement with Mexico and a state-level guest worker program. How such a program would be implemented remains seriously in question, since it would require Utah to seek a federal waiver of the prohibition against employing undocumented workers. Still, the Utah experiment demonstrates that the "all restrictions, all the time" stance of state legislatures may be shifting, as lawmakers begin to realize the negative effects of enforcement-only provisions and recognize states' economic need for the undocumented workers who shoulder much of the labor burden in the agriculture, construction and hospitality industries, among others.

Soon, however, the U.S. Supreme Court will weigh in on state action in the immigration context and will decide important questions about federal supremacy in the area of immigration. The Court is expected to rule later this year on whether the Legal Arizona Workers Act impermissibly conflicts with federal law and thus is preempted by it. The Ninth Circuit will soon rule on whether Arizona's SB 1070 conflicts with federal immigration enforcement laws, after the most controversial provisions of the state law were preliminarily enjoined on that ground last summer. One key question is whether courts will find justification for state immigration laws in the federal government's inaction.

But even if these state laws are upheld, their effectiveness is doubtful. While states may have some ability to legislate in the area of immigration, a patchwork of state immigration laws will do little to decisively resolve the fate of the U.S. undocumented population and has already caused uncertainty, confusion and unpredictability for business. At best, state action is a side show to the main event: comprehensive federal reform of the U.S. immigration system.

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.