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Scott G. Winterton, Deseret News
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)

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.

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.