U.S. Legislative Immigration Update March 28, 2011

Right Side News Reports from the Federation for American Immigration Reform (FAIR) in this March 14th, 2011 Legislative Weekly. FAIR tracks pending immigration laws in the United States which can impact homeland security in positive or negative ways and are a valued resource.

  • Lee and Chaffetz Stand Strong against Utah Guest Worker Amnesty Bill
  • Congressman Flake Flip-Flops on Amnesty
  • Homeland Security Launches E-Verify Self-Check
  • Congressman Hunter Introduces Key Immigration Bills

 

 

Lee and Chaffetz Stand Strong against Utah Guest Worker Amnesty Bill

Two members of Utah’s delegation, U.S. Senator Mike Lee (R) and U.S. Congressman Jason Chaffetz (R) announced their opposition to Utah’s new guest worker amnesty law last week, declaring their belief that the law is unconstitutional. Under Utah’s new law, H.B. 116, the state may grant illegal aliens who enter the state before May 10, 2011 guest worker permits, allowing them to continue living and working in Utah—in direct violation of federal law. The bill also allows these illegal workers to sponsor their illegal alien relatives (spouses and children) for permits that allow them to accompany the worker. H.B. 116 will go into effect as soon as the State of Utah obtains a waiver from the federal government or July 1, 2013, whichever is sooner.

Rep. Chaffetz, a member of the House Judiciary Committee and the House Immigration Reform Caucus, denounced the bill at a recent town hall meeting. (Salt Lake Tribune, Mar. 22, 2011) “I feel it’s unconstitutional, and I took an oath to uphold the Constitution,” he said.  (Id.) Chaffetz pointed out that by issuing guest worker permits, Utah has “come to the point that the state is trying to do something that clearly is the purview of the federal government.” (Id.) Sen. Lee, who sits on the Senate Judiciary Committee, made similar comments during an interview in his home state last week. “It’s just not going to happen,” he said. (Id.)  “I know of no process in federal law that suggests that such a waiver could even be granted, nor do I know of any political inclination in Washington to let that happen….It would take a massive shift in federal law for [H.B. 116] to even be considered, and there’s no appetite to transfer that authority over to the states.” (Id.)

There is solid precedent for Chaffetz and Lee to argue Utah’s new law is unconstitutional.  In 1976, the U.S. Supreme Court reaffirmed the federal government’s exclusive authority to “regulate immigration.” (De Canas v. Bica, 424 U.S. 351, 354 (1976)) In doing so, the Court narrowly defined “regulation of immigration” as “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” (Id. at 355) Thus, by allowing the State of Utah to determine who receives guest worker permits and under which conditions a guest worker may remain, the Utah Legislature has usurped the federal government’s power to regulate who is admitted into the country and the conditions under which a person may stay.

But despite serious questions about the constitutionality of the law, Utah’s Attorney General, Mark Shurtleff, has been lobbying Department of Justice and White House officials to implement Utah’s new set of immigration laws—referred to as the “Utah Compact”—on a national scale. (Salt Lake Tribune, Mar. 9, 2011) Shurtleff presented the Compact to other state attorneys general at a national meeting earlier this month in Washington, D.C.  (Id.) As part of his trip, Shurtleff also met with White House intergovernmental affairs staff as well as U.S. Attorney General Eric Holder. (Id.) “I think they were really impressed,” Shurtleff said in regards to his meetings. (Id.) “They didn’t commit to anything, but they were really excited about what Utah was able to accomplish.” (Id.)

Regardless of the Justice Department’s reaction, there is no process under federal law that would allow it to unilaterally invalidate the federal statutes that make it unlawful for illegal aliens to reside in the U.S. or for employers to hire illegal aliens.  Thus, in granting Utah a waiver to implement its guest worker program, the Obama Administration would be affirmatively invalidating an act of Congress.  However, if the Obama Administration refuses to grant Utah a waiver on the grounds that doing so would be unconstitutional, Utah’s guest worker bill will still go into effect on July 1, 2013.  At that point, Americans will be watching to see if the Obama Justice Department sues the State of Utah as it sued the State of Arizona.

Congressman Flake Flip-Flops on Amnesty

U.S. Representative Jeff Flake (R-AZ) changed his position on immigration reform last week, declaring the pursuit of “comprehensive” immigration reform a “dead end.”  (Jeff Flake for U.S. Senate, The Arizona Republic, Mar. 23, 2011) The “political realities in Washington are such that a comprehensive solution is not possible, or even desirable given the current leadership,” he said in a statement posted on his website. (Id.)

This statement reverses years of Congressman Flake’s work to promote such amnesty legislation.  For example, in 2007, Rep. Flake co-sponsored legislation with Rep. Luis Gutierrez called the STRIVE Act (H.R. 1645).  The STRIVE Act included guest worker program and pathway to citizenship for illegal aliens.  At that time, Rep. Flake argued his legislation was not amnesty because amnesty was an “unconditional pardon,” and the STRIVE Act required illegal aliens to pay fees and fines.  (See e.g. FAIR Legislative Update, Sept. 4, 2007)

The Congressman credits the continually increasing drug-related violence in Mexico as the reason for his shift to a harder stance on border security and immigration policy.  In a statement released two weeks ago, the Congressman stated that if National Guard troops withdraw from the border, there should be a subsequent increase in border patrol agents.  (Press Releases, Mar. 16, 2011)

Congressman Flake’s statements come at a time when the race for 2012 candidate positions is heating up.  The congressman has indicated he is running for Senator Jon Kyl’s seat next November.  (Roll Call, Feb. 10, 2011; KGUN9, Feb. 14, 2011)

Homeland Security Launches E-Verify Self-Check

Early last week, Secretary of Homeland Security Janet Napolitano and Director of U.S. Citizenship and Immigration Services (USCIS) Alejandro Mayorkas unveiled an online version of E-verify that allows individuals to verify their own work authorization.  (Department of Homeland Security, Mar. 21, 2011)  This electronic version is intended to provide workers with an opportunity to verify their own work authorization, thereby allowing them to correct any inaccuracies in their DHS and Social Security Administration (SSA) records before applying for employment.  DHS also hopes the self-check program will streamline the verification process for employers.  (Id.)  The E-Verify self-check program allows workers eight business days to clear up any inaccuracies identified.  (Bloomberg, Mar. 21, 2011)

Although the online self-check is currently only available to residents of Arizona, Colorado, Idaho, Mississippi, Virginia and the District of Columbia, DHS hopes to expand the program nation-wide within the year.  (Bloomberg, Mar. 21, 2011)

Secretary Napolitano used last week’s press conference to tout the abilities of E-Verify.  “It’s only getting more accurate with each passing day,” she said.  “No one who is eligible to work is prevented from doing so.”  (Id.)  Officials noted they expect almost one million queries within E-Verify self-check’s first year online.  (Id.)  “This new tool is a tremendous service for employees and employers alike,” said USCIS Director Mayorkas.  (Id.)

Congressman Hunter Introduces Key Immigration Bills

Congressman Duncan D. Hunter (R-CA) introduced two key immigration bills this past month, the “Enforce the Law for Sanctuary Cities Act” (H.R. 1134) and the “Unlawful Border Entry Prevention Act of 2011” (H.R. 1091).

In an important step in keeping state and local governments from contravening federal immigration law, the “Enforce the Law for Sanctuary Cities Act” would amend Section 241(i) of the Immigration and Nationality Act (INA) to prohibit state and local governments with “sanctuary city” policies in place from receiving federal reimbursements for incarcerating illegal aliens. (§2) Under the bill, state and local governments would also be ineligible for SCAAP funds if they prohibit law enforcement officials from “gathering” information regarding the citizenship or immigration status of any individual. (Id.)

Intended to help secure the border, Rep. Hunter’s “Unlawful Border Entry Prevention Act of 2011” would grant the Department of Homeland Security (DHS) authority to construct reinforced fencing along not less than 350 miles of the southwest border. (§2(a)) Rep. Hunter’s bill is critical because under existing law, the Secure Fence Act of 2006, DHS has no legal authority to build additional infrastructure along the border.  (See Public Law 109-367; Oct. 26, 2006) The bill would also require Homeland Security to submit to Congress a plan to gain “operational control” of a specific sector of the southwest border if the Department determines that there has been a 40 percent increase in apprehensions of illegal aliens crossing the border in that sector. (§3(a)) The bill defines “operational control” as the “prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” (§3(b)) The “Unlawful Border Entry Prevention Act of 2011” has bi-partisan support and is co-sponsored by both Republicans and Democrats including: Representatives Brian Bilbray (R-CA), Ted Poe (R-TX), Ed Royce (R-CA), Heath Shuler (D-NC), Tim Ryan (D-OH), and Mike McIntyre (D-NC).

“Despite considerable gains in recent years, the Southwest border is nowhere near secure,” said Rep. Hunter in a statement about his border entry prevention bill. (Rep. Duncan Hunter Press Release, Mar. 15, 2011) “Smuggling corridors remain wide open, providing direct access for drug runners, criminals and illegal immigrants . . . Thousands have died in Mexico due to border violence in the last two years alone,” he added. (Id.) Rep. Brian Bilbray, Chairman of the House Immigration Reform Caucus, also commented on the importance of the bill: “The United States must control our southern border to fight against illegal immigration and improving our national security.  This cannot be accomplished unless the Department of Homeland Security has the legal authority to reinforce the border.” (Id.)