The legislative analysis that accompanied HB116 noted that the bill could be preempted. Opponents have used that perfunctory analysis to claim that HB116 is unconstitutional. But law scholars know that each preemption case presents a unique question of statutory interpretation that may not even implicate constitutional issues.
This was true in the most recent Supreme Court case on immigration law wherein Chief Justice John Roberts noted that federal immigration law "expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others."
HB116 doesn't implicate express federal powers of foreign relations, border control or citizenship. It does, however, address some of the thorniest issues faced by states because of the large influx of undocumented immigrants. States are required to educate, medicate and police undocumented immigrants — but they have been bereft of tools to draw them out of the shadows and have them contribute forthrightly in the workplace. HB116 provides challenging but achievable preconditions that allow undocumented immigrants who have resided in the state to work and contribute using their own identity. It eliminates the demand for false documents.
It is fair for the federal government to ask whether federal law preempts Utah from establishing its own employment law for undocumented residents. It is also fair for Utah to ask the federal government whether federal law that goes largely unenforced should be allowed to preempt sensible legislation traditionally with the state's purview.
The complicated issues of preemption, however, may be moot if the federal government waives the potential conflicts. Waiver is fully contemplated by HB116. We note that the primary federal law in question, the Immigration Reform and Control Act, gives discretion to the U.S. attorney general to authorize employment (see 8 U.S. C. 1324a subsection (h)(3)(B)), thereby providing the statutory authorization for the HB116 waiver.
In our opinion, HB116 represents a good faith approach by a burdened state government to accomplish what the vast majority of Utahns want: a sensible, safeguarded program that allows our "alien friends" who currently reside in the state to live and work using their own identity, without providing a pathway to citizenship. It represents the mainstream consensus of citizens and legislators. Given the combined encroachments and failures of the federal government with regard to immigrants within Utah's jurisdiction and protection, we would like to think that HB116 would make Mr. Jefferson proud.