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State immigration laws may never be constitutional

By Josh Loftin

Associated Press

Published: Friday, May 13 2011 12:19 p.m. MDT

SALT LAKE CITY — Utah legislators passed an immigration law that they were confident wouldn't end up the same way Arizona's version did last year: tangled up in the courts.

But 14 hours after Utah's law went into effect this week, it, too, was before a federal judge.

As the case goes through the courts, other states grappling with illegal immigration are paying close attention. In Georgia, Gov. Nathan Deal signed a comprehensive immigration bill Friday that includes an enforcement measure very similar to Utah's version. Most parts of the law are effective July 1.

Alabama has one, too, and it is moving close to passage in the Legislature.

The halting of Utah's law could cause them concern. After all, state lawmakers worked at length with attorneys to try to eliminate constitutional issues a federal judge raised with Arizona's law.

Despite those refinements, the bottom line remains the same, legal scholars say. Immigration is enforced by the federal government, and any state attempting to tell the federal government how to enforce immigration laws is stepping into potentially unconstitutional territory.

So far, courts have agreed with that assessment. The hold placed on parts of Arizona's law by a district court judge was upheld in April by a three-judge panel of the 9th Circuit Court of Appeals, and earlier this week Gov. Jan Brewer said she plans to appeal the rulings to the U.S. Supreme Court.

"The main reason the Arizona statute is bad is because it's the state taking over immigration law," said Arizona State University law professor Paul Bender. "The Utah law is unconstitutional for the same reason."

While Utah's law may still be overturned because it usurps federal authority, the state did narrow its law significantly and made it not as "blatantly unconstitutional" by trying to fix two other issues the courts have taken with Arizona's law, Bender said.

One change made by Utah and Georgia was the elimination of a clause found in the Arizona law that would compel police to check the citizenship status of anyone who they have "reasonable suspicion" to believe is in the country illegally — whether a crime has been committed or not. Because police would have been forced to determine immediately whether a person was potentially illegal, racial profiling was almost guaranteed, Bender said.

Alabama's proposed law contains the reasonable suspicion clause, but state Sen. Scott Beason, R-Gardendale, has maintained the bill is constitutionally sound.

Utah police will be required to check the citizenship status of anyone arrested for a major crime. For minor offenses, such as traffic violations, the police can check at their discretion, but only if the person stopped doesn't have valid identification.

Georgia police will be given the power to check citizenship for all state offenses, but not required unless a person is booked into jail.

Another change both states made was focusing enforcement on people committing a crime, instead of the Arizona approach that allowed police to check almost anyone they legally encounter, Bender said.

When coupled with a program beginning in 2013 that will allow illegal immigrants with jobs to live and work in the state, Utah finds itself cast as the considerate northern neighbor to Arizona.

Protests in Utah have been minor. The death threats and widespread boycotts that followed the passage of Arizona's law in 2010 are non-existent. Georgia, on the other hand, has seen multiple protests with thousands of people participating and national groups are threatening boycotts, despite the two laws being almost identical.

Utah lawmakers credit their public relations success to the Utah Compact, a set of principles drafted by religious and business leaders.

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