Utah's immigration enforcement law passes constitutional muster, state attorneys argue

Published: Wednesday, Jan. 18 2012 4:38 p.m. MST

SALT LAKE CITY — Utah's immigration enforcement law passes constitutional muster and should be allowed to go into effect, the Utah Attorney General's Office argues in a new federal court filing.

"The United States … has mischaracterized HB497, wrongly speculated about how it might be administered by local law enforcement, and misstated and ignored relevant federal law, which expressly supports those provisions," state attorneys wrote in a response to the federal government's motion for a preliminary injunction against HB497.

The issues before the court are "neither difficult nor complicated. When analyzed in light of the rights that Congress has given the states, and the states' inherent authority, HB497 passes constitutional muster," the response said.

HB497 was passed by the 2011 Utah Legislature and signed into law in March. The law requires police to verify the immigration status of people arrested for felonies and class A misdemeanors as well as those booked into jail on class B and class C misdemeanors. It also says officers may attempt to verify the immigration status of someone detained for class B and class C misdemeanors.

A class action lawsuit was filed in May by the ACLU and National Immigration Law Center on behalf of several individuals and organizations, claiming the law is unconstitutional and will invite racial profiling. In November, the Department of Justice intervened in the lawsuit, claiming Utah's law is unconstitutional because it attempts to establish a state immigration policy.

Attorneys representing the state of Utah, however, argue that HB497 reflects the state's attempt to "undertake its supporting role in the fight against illegal immigration, within the parameters set by Congress in those statutes. Contrary to the United States' arguments, HB497 does not conflict with Congress' mandate but is entirely consistent with it."

However, DOJ attorneys have argued that HB497 would undermine the federal government's control over the regulation of immigration.

"That argument is filled with naked assertions, hyperbole and a misunderstanding of what HB497 does," Utah attorneys responded.

Federal lawyers, in seeking a preliminary injunction of the law, contend the law would cause unlawful harassment, damage the United States' relationship with immigrant communities and harm its reputation with foreign countries.

To support that position, the federal government submitted a declaration by Deputy Secretary of State William Burns, which says HB497 will antagonize foreign governments, cause retaliatory treatment of U.S. citizens and undermine the nation's standing abroad.

The Utah Attorney General's Office responded: "These concerns are purely speculative and legally irrelevant.

"As (9th Circuit Judge Carlos) Bea said, 'A foreign nation may not state a law to be pre-empted simply by complaining about the law's effect on foreign relations generally. We do not grant other nations' foreign ministries a 'heckler's veto.'" (Bea was a dissenter in the 9th Circuit Court of Appeals review of United States v. Arizona.)

In a nod to states' rights, Utah also argued that any alleged harm to the United States is outweighed by harm to the state.

"Twenty-two state senators, 59 state representatives and Governor Herbert believed HB497 was necessary. Utah's state government believes that there is a problem with illegal immigration, which impacts the state of Utah in myriad ways," the response said.

The Utah Department of Corrections spends "nearly $8 million a year to keep 300 illegal immigrants in prison," state attorneys argued, quoting a June 19, 2008, KSL-TV report.

Moreover, the state spends between $54.9 million and $85.4 million of state and local expenditures for the public education of undocumented children, according to the state auditor general.

Also, the state claims "Utah's medical providers incur as much as $26 million per year providing care to individuals not lawfully present in the United States," according to the state legislative fiscal analyst.

"HB497 — which constitutes the will of the people of the state of Utah, and complies with the express and implied invitation by the federal government — supports the public interest," Utah attorneys argued.

The matter is set for a hearing before U.S. District Judge Clark Waddoups on Feb. 17.

E-mail: marjorie@desnews.com

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