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.

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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