In our opinion: Preserve the Utah Solution

Published: Sunday, June 12 2011 12:00 a.m. MDT

Utah Governor Gary Herbert signs a package of Immigration bills Tuesday, March 15, 2011 in the Gold room of the State Capitol. (Scott G Winterton, Deseret News)

Scott G. Winterton, Deseret News

This year, Utah legislators accomplished what has eluded Congress by passing thoughtful and pragmatic legislation to address the challenges posed locally by illegal immigration. Efforts under way to unravel this accomplishment are misguided and may cede important rights that Utah should assert, given federal non-action.

Taken as a whole, the Utah Solution would weed out dangerous criminals without overburdening local law enforcement (HB497), pilot a unique sponsored guest worker program and provide a workable method for a limited group of currently undocumented immigrants to work in Utah without creating a path to citizenship (HB116).

It was inevitable that such innovations would face court challenges.

But given the Legislature's sober deliberation of these measures, the popularity of the legislation's aims, the support enjoyed from a variety of institutions (including the Chamber of Commerce, the Sutherland Institute and our owner, The Church of Jesus Christ of Latter-day Saints) and the wide margins by which the bills passed, it is unfortunate that a highly vocal effort to undo the Utah Solution has emerged within the Republican party.

This Saturday, delegates to the Utah Republican Convention may vote on a resolution calling for repeal of HB116. HB116 is the portion of the Utah Solution that would allow undocumented immigrants residing in Utah prior to May 11 to work in Utah after meeting numerous preconditions, including a criminal background check.

Given the importance of states' rights to those who might vote on the resolution to repeal, it might prove helpful to consider quite carefully Utah's rights as a state to deal with the local effects of failed federal policies regarding immigration. What rights does Utah have to deal with the challenges and opportunities posed by undocumented immigration?

This question is as old as the republic. Responding to the infamous Alien and Sedition Acts that gave the president unfettered discretion to deport aliens, Thomas Jefferson in 1798 argued in the Kentucky Resolutions that "alien friends are under the jurisdiction and protection of the laws of the State wherein they are." Jefferson cited as authority the Tenth Amendment, correctly noting that that no power over aliens "has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens."

The Kentucky Resolutions have been discredited because of the method invoked to assert states rights, namely nullification. But many of the substantive rights asserted by Jefferson in the Kentucky Resolutions have been vindicated through other means.

Indeed, with regard to so-called "alien friends" (migrant inhabitants of good will who were not naturalized), Jefferson understood that Congress's enumerated power to create uniform laws for naturalization dealt specifically with the privilege of citizenship, not the civil rights and obligations of inhabitants within the individual states. Laws governing property, contract and crime — the rights and obligations of inhabitants, regardless of citizenship status — were traditionally the purview of state governments.

With successive waves of immigration, federal immigration law expanded, and courts recognized that the federal government's plenary power over foreign affairs provided a constitutional justification for federal immigration law. Additionally, courts have extended the 14th Amendment's equal protection clause's prohibitions against invidious discrimination to aliens.

Nonetheless, efforts to enforce the aims of federal immigration prerogatives over foreign relations, border control and naturalization have increasingly included means that piggy-back on employment law and criminal law, areas traditionally seen as state prerogatives.

Consequently, the potential for conflict between federal and state law has increased. When such conflicts end up in court, judges explore whether federal law has so occupied the field that the state-based approach cannot continue. This is the concept known as federal preemption.

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