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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

Supporters of Utah's overhaul package claim it uses the compact's ideals to balance compassion and enforcement. Most of the criticism of the package has focused on the guest worker program, which opponents describe as amnesty.

But the missing outrage in Utah doesn't diminish the constitutional hurdles, especially since the federal ruling on Arizona's law focused on federal control of immigration.

"We understand the desire of the defendants to distance themselves from the Arizona law," said Karen Tumlin, managing attorney for the National Immigration Law Center, who sued the state along with the American Civil Liberties Union. "But if you read the text of the bill, the same issues are at play."

Like Arizona, the Utah, Georgia and Alabama laws grants broader powers to police than the federal government permits. Simply detaining a suspected illegal immigrant who has not committed a major crime — which could happen in all of the states — is going beyond a state's authorized authority.

"The core immigration power is control of the border," said Raquel Aldana, a law professor at University of the Pacific in California. "They control it by deciding who can come in, who can't come in and who has to leave. There is not much of an argument a state can make against that power."

But the sponsors of the laws in Georgia and Utah disagree.

Georgia state Rep. Matt Ramsey, R-Peachtree City, said Arizona ran afoul of the Constitution because they made illegal immigration a state crime, as well. That would mean the state could imprison an illegal immigrant even if the federal government told them to release the person.

"We didn't create any offense based strictly on immigration status," Ramsey said. "We're truly about identifying individuals in the country illegally. What happens after that is up to the federal government."

Despite the temporary restraining order issued against Utah's law, Ramsey said the second-generation enforcement laws will eventually pass legal muster.

That same confidence is expressed by Utah supporters. The sponsor of House Bill 497, Rep. Stephen Sandstrom, R-Orem, said he spent months publicly discussing the proposal — which initially was identical to Arizona's law — and thoroughly reviewed the Arizona court ruling before passing the bill in early March.

"We were doing the due diligence to make sure it's constitutional," Sandstrom said.

Just as Arizona's court fight helped shape laws passed this year, future legislation may very well use Utah or Georgia's problems for guidance, said University of Utah law professor Wayne McCormack. But without federal approval, states will likely continue to run afoul of the Constitution.

"The question is whether the federal government will allow the states to have a role," McCormack said. "That's going to be the biggest issue for the courts."

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Associated Press writers Kate Brumback in Atlanta and Phillip Rawls in Montgomery, Ala., contributed to this report.

Josh Loftin can be reached at http://twitter.com/joshloftin.

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