A Special Report: Immigration and the States: March 2011

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Can Utah’s approach to immigration offer a way forward for other states?

By Alan Greenblatt

Utah legislators are crafting a compromise on immigration law that could end up being a model for across-the-aisle cooperation for other states.

Last year, Republican Governor Gary Herbert signed a bill requiring employers to check the citizenship status of their new hires through the federal E-Verify system. He said he would sign it only if legislators agreed to come back later in special session to soften the law, making the verification requirement voluntary for the first year.

Before the governor could call legislators back to Salt Lake City, however, Arizona had passed its controversial immigration law.
Arizona’s Senate Bill 1070 required local police to check the immigration status of individuals they had reason to suspect were in the country illegally. Many lawmakers there believed the estimated 500,000 illegal immigrants in the state contributed to an atmosphere of violence and they had lost faith in the federal government to take meaningful action.

It now seemed to Herbert that if he asked the Utah Legislature to reopen its immigration bill, lawmakers might emulate Arizona’s tough new approach instead of softening it.

“The mood had changed,” says Utah Representative Stephen Sandstrom.

Even though the number of illegal immigrants in the country had dropped from more than 12 million in 2006 to about 11.2 million in 2010, according to the Pew Hispanic Center, many people support tougher laws. National polls following passage of the Arizona law showed a majority of Americans supported the legislation, and even larger majorities supported individual aspects of the law, such as making it a crime to support someone who is an illegal immigrant.

Although much of the law was struck down by a federal judge a day before it took effect, Sandstrom still thinks Utah should follow Arizona’s lead.

Nonetheless, Sandstrom has been working with legislators from both parties for months on a version of the bill that would not only impose tougher penalties on illegal immigrants and their employers, but also would allow new immigrants into the country to meet specific workforce needs. Sandstrom insists this hybrid approach is “not a compromise.”

“It’s kind of the carrot and the stick,” he says. “We’re going to crack down on the illegals who are here in the country, but at the same time there’s a need for migrant workers.”

If the bill passes, it may provide a model for other states that are still looking for the best ways to address illegal immigration.

Mixed History

Congress has been unable for years to come up with any sort of approach that can satisfy those concerned with the public safety and costs associated with illegal immigration, while also satisfying those who believe removing more than 11 million illegal immigrants from the country would cause economic chaos and human rights abuses. A Congress now under divided control will likely make little progress at all.

“Continuing political stalemate is the most likely scenario. Congress is not going to act,” says Stephen Camarota, director of research at the Center for Immigration Studies, which favors a tough approach on immigration.

There have been laws restricting immigrants since the late 19th century. More recently, the federal Immigration and Nationality Act of 1965 eliminated country-specific quotas and nearly doubled the number of legal immigrants who could enter the country.

The 1986 Immigration Reform and Control Act granted legal status to 2.7 million illegal immigrants and tried to curb future illegal immigration by establishing penalties for employers who knowingly hired them. Another law in 1996 increased the number of border control agents and made illegal immigrants ineligible for Social Security benefits. The law even made legal immigrants entering the country after 1996 were made ineligible for programs such as food stamps and Medicaid for five years.

States Take Different Paths

For several years now, states have adopted different approaches to the issue. Some have tried to help illegal immigrants become more productive by offering in-state tuition rates to their children or setting up state offices designed to promote a smoother integration into society.

Arizona Senator Kyrsten Sinema says that although legislators have to give police and prosecutors the tools they need to combat law-breaking, it’s incumbent upon both Congress and the states to figure out a more “comprehensive” strategy for coping with the millions of illegal immigrants already in the country than just deporting them. “Obviously, an enforcement-only approach is not going to work,” Sinema says. “That is what we’ve been doing for the last several decades and it’s been a failure.”

Suman Raghunathan, an immigration policy specialist for the Progressive States Network, says that “contrary to popular belief, not all state-level legislation is restrictive and anti-immigrant.”

State lawmakers have passed numerous bills addressing worker shortages in different sectors, and helping legal immigrants with housing, employ-ment, education and other things.

Most attention, however, continues to focus on laws that make life more difficult for illegal immigrants and those who hire or house them. It’s been a big shift from the trends that were prevalent a decade ago.

“It does seem that the people who want enforcement are somewhat better organized at the state level,” Camorata says.

But after having enacted hundreds of laws regarding illegal immigration over the last few years, it’s not clear how much stricter states can get. If provisions of the Arizona law are restored through the federal appeals process, it’s clear legislators in a number of states are interested in copying many of its provisions. The main portions of that law have not survived court scrutiny as yet, however. Another idea that some legislators are considering—challenging the citizenship of all native-born children under the 14th Amendment—is guaranteed to provoke even more battles in the courts.

Although states may be pushing the limit by crafting policy in an area that is primarily a federal responsibility, that doesn’t mean they won’t keep trying. Many state lawmakers of both parties believe the federal government isn’t living up to its responsibility to address the issue, despite recent efforts to step up border enforcement.

“The fundamental premise of any discussion on immigration policy rests with the failed federal policies—the abject, dismal, pathetic failure of the federal government to do what it is constitutionally mandated to do,” said Republican Utah Senator Curtis Bramble in a debate on immigration policy just before the Legislature convened.

His Democratic colleague, Utah Senator Luz Robles, could hardly agreee more: “Regardless of where you stand on immigration,” she says, “Congress has failed to address this problem.”

It’s clear legislators want to find ways to address illegal immigration. The issue was one of the few to command widespread attention in last year’s election season, amid the dominant concern about the economy. Many state lawmakers believe the costs associated with illegal immigrants far exceed any benefit they bring into state and local coffers through tax revenue.

Stepping Up Enforcement

Although state lawmakers may be running short of truly innovative ideas in this area, they won’t stop seeking ways to better enforce existing laws or borrowing ideas from one another. The many new Republican governors and legislative majorities will likely help spread so-called pro-enforcement legislation to more states.

“Even if there isn’t anything radically new, there’s an increase in the number of states saying, ‘We’re going to protect ourselves,’ ” says Ira Mehlman, a spokesman for the Federation for American Immigration Reform, an anti-immigrant group.

Some ideas that seemed cutting-edge or even radical when they were first introduced have gained widespread acceptance. The E-Verify program, for example, which requires employers to check on the eligibility of employees to work in the United States, has survived most court challenges. Arizona’s law imposing penalties on companies that knowingly hire illegal immigrants is currently before the U.S. Supreme Court. If it is upheld, other states are expected to join the few that already have passed similar legislation.

The federal 287(g) program, which allows trained police officers to carry out federal law enforcement functions, was approved in 1997, and the Florida Department of Law Enforcement signed on in 2002. Although most participants are city and county law enforcement agencies, additional states are looking into signing up. The Secure Communities strategy, which calls for sharing information—such as fingerprint records—between federal agencies and local law enforcement, is becoming even more entrenched.

“You’re certainly going to see a lot more cooperation between local law enforcement and the feds,” says Tamar Jacoby, president of Immigra-tionWorks USA, a coalition of employers. “They’ve widened an avenue that more states are going to go down.”

Oklahoma Representative Randy Terrill says his state will be looking for ways to provide local police and sheriff departments more incentive to vigorously enforce the laws that are on the books. He has introduced legislation that would allow the seizure of property in crimes involving illegal immigrants.

“Basically, [my bill] will take the latest Arizona legislation and add to it,” he says, “creating enhanced criminal penalties for illegal immigrants who are involved in drug crimes and human trafficking, and who have guns.”

Collaborative Approach

In taking Arizona to court over issues raised by SB 1070, the Obama administration may have sought to ward off efforts in other states to pass copycat legislation. Despite the court ruling in the administration’s favor, however, lawmakers in several other states have introduced their own versions of the legislation. The court decision, some say, provided only a road map for avoiding potential legal pitfalls.

“Of course, the decision has zero bearing in Utah, but it was prudent to look at it,” says Sandstrom. “I made changes to my enforcement bill that makes it better, so that it will pass the scrutiny of the courts.”

The biggest change from when Sandstrom first considered such legislation, however, is his willingness to pair it with ideas for training and hiring new immigrants. Businesses and church groups—including the Mormons—have supported a “compact” to promote legislation that would show respect for illegal immigrants and keep their families intact.

“We’ve been working on creating a coalition of both progressives and conservatives,” says Utah’s Robles. “We’re becoming the laboratory state for both a comprehensive approach and accountability.”

Robles compares the potential for finding legislation that works for people across the spectrum of opinions on illegal immigration to earlier breakthroughs in the states, such as Wisconsin’s approach to welfare in the 1990s. It remains to be seen whether a deal can be reached in Utah, and whether such a bipartisan approach will travel as rapidly across state borders.

Advocates nationwide are watching.

“An extremely conservative, overwhelmingly Republican state is considering saying that ‘enforcement only’ is not the way to go on immigration,” says Jacoby. “It’s quite exciting. Everyone in the state wants to come together and find a consensual answer. I haven’t been in a state legislature where you find that kind of enthusiasm in a long time.”

Alan Greenblatt is a freelance writer in St. Louis, Mo. He is a frequent contributor to State Legislatures.

 The Cost Calculus

It’s difficult to get a firm sense of just how much illegal immigrants cost states, cities and counties in areas such as education, health care and law enforcement.

Last July, the Federation for American Immigration Reform (FAIR) put the cost to states and localities at $84.2 billion a year. FAIR is an anti-immigrant group, but studies from other sources also have shown that significant costs are involved. A 2007 Congressional Budget Office report found the cost of services to illegal immigrants fall mostly on states, counties and cities.

Other studies of individual states, however, have found a net benefit to states. A 2004 Arizona study estimated total state revenue from immigrant workers was about $2.4 billion, with $1.5 billion coming from illegal immigrants and $860 million from naturalized citizens. The cost of education, health care and law enforcement was $1.4 billion, meaning the state came out ahead by $940 million.

A Texas study estimated total state revenues from unauthorized immigrants to be $1.58 billion in FY 2005, while the total cost of providing state services was $1.16 billion, leaving a net benefit of $424 million in FY 2005. Counties and cities, however, faced an additional $1.44 billion in health care and law enforcement costs that were not reimbursed by the state.

The Congressional Budget Office report found “over the long term, tax revenues of all types generated by immigrants—both legal and unau-thorized—exceed the cost of the services they use. However, many estimates also show that the cost of providing public services to unauthorized immigrants at the state and local levels exceeds what that population pays in state and local taxes.”

The report notes that illegal immigrants are barred from receiving many services provided by the federal government through Social Security or Medicaid, for example.

Arizona Bulldog

Senator Russell Pearce has become the champion of strict immigration legislation in Arizona.

By Matt Bunk and Evan Wyloge

Arizona Senator Russell PearceAt first, Russell Pearce was just another conservative state lawmaker from the suburbs east of Phoenix.

He was abrasive and committed to his beliefs. He preached small government and individual rights. His views were closely in line with the freedom-loving, don’t-tread-on-me style of politicking that had been cornerstones of his Mesa-based legislative district long before he was elected to the Arizona House of Representatives in 2001.

But when Pearce, a Republican, took a fire-and-brimstone approach to illegal immigration, he emerged as one of the most influential and divisive state lawmakers of his era.
Pearce, now Senate president, was an icon of the anti-illegal immigration movement even before Governor Jan Brewer signed his Senate Bill 1070 into law in April 2010. The law required local police to check the immigration status of individuals they had reason to suspect were in the country illegally, along with other provisions.

After that, Pearce became a fixture on national news programs where he was either praised as a patriot or vilified as a racist.

Pearce’s legislation revived the national debate over immigration reform and mobilized lawmakers in six states, as of early January, to introduce simlar legislation. It also has energized legislators in 14 states to pledge to introduce legislation this year to end the practice of granting citizenship to children born to illegal immigrant parents, a right under the 14th amendment.

Success on Immigration

To get as far as he has, Pearce violated several customs that have ruled the Arizona Legislature for decades. Along the way, he flew in the face of the tenet that politics is the art of compromise.

“Russell doesn’t know where that middle ground is,” says Senator Steve Gallardo, who served for years with Pearce in the Arizona House. “He’s not one to play nice.”

Before a statewide immigration measure passed in 2004, almost nobody in the Legislature believed, as Pearce did, that states should burden themselves with enforcing immigration laws, even though most lawmakers from both parties agreed the federal government had failed in its re-sponsibilities to secure the border. Pearce had introduced four immigration-related bills that were shot down either by his fellow lawmakers or by then-Governor Janet Napolitano, a Democrat.

Instead of lowering his expectations and seeking compromise on immigration, however, Pearce dug in deeper and lashed out at those who opposed him. Democrats, he claimed, had no regard for the rule of law, and he implied that Republicans who opposed him were traitors.

His hardball tactics damaged his relationships at the Capitol. But his bluntness and unshakable convictions have inspired countless conservatives across the state to band together in support of tougher immigration laws.

And Pearce hasn’t been reluctant to mobilize them.

The immigration initiative Arizona voters approved in 2004 gave Pearce his first landmark victory. It required residents to provide proof of citizenship when voting or applying for public benefits. It was the first real battle over immigration policy at the state level, and Arizona’s congressional delegation and many high-profile Republicans campaigned against it.
Voters backed Pearce again in 2006 when they approved four ballot measures to restrict public benefits for people living in Arizona illegally. Pearce faced insurmountable opposition to the measures in the Legislature and had to settle for Republican support on the ballot referrals.

Grassroots Power

The success of the 2006 ballot measures legitimized Pearce in ways that legislative approval never could. All four passed with more than 70 percent of the vote, giving Pearce a heavy stick to hold above the heads of any lawmakers who dared oppose him.

From that point on, Pearce says, he hasn’t had to remind colleagues that he commands a powerful grassroots network of supporters—they already know what they’re up against.
“It’s a team effort—call it team America if you will. But this is an effort to do what’s right, and the public supports me,” Pearce says. “And the fact that I have contact with those folks is concerning to [some lawmakers]. The last thing I want to do is intimidate people, but they already know that the public supports what I’m doing, so I don’t have to say it.”

During the past four years, Pearce has spearheaded five new laws designed to either eliminate the incentives that draw undocumented immigrants into Arizona or punish those who reside in the state illegally. None of the wins came easily; in each instance, Pearce had to overcome nearly unanimous opposition from Democratic law- makers and widespread skepticism from fellow Republicans.

Each time he faced resistance, he fell back on the stubborn resolution that had served him well during his 24 years in law enforcement. Even when forced to negotiate, Pearce starts from a position of strength and gives very little to those seeking compromise on the core provisions of his legislation.

“He works from a much stronger bargaining position, because the core provisions remain, and he can say, ‘Look, I’ve given you this and that already.’ It’s a pretty cagey negotiating style,” says Representative Russ Jones. “It’s shock and awe. You’re shocked by what he puts forward at first. It’s been very effective for him.”

Several Republican lawmakers have complained that Pearce’s zeal has at times led him over the edge, including efforts to punish lawmakers who oppose him.

Six House Republicans were absent and three voted against a 2009 bill to punish cities that give “sanctuary” to illegal immigrants. They started receiving hate mail—and in at least one case, threats of violence—from people who were enraged that Pearce’s bill had failed. As it turned out, Pearce had sent an e-mail to his supporters, urging them to make their displeasure known to the “sanctuary six,” as he dubbed the absent Republicans.

Pearce “has people at his beck and call who will do outside-of-the-box situations, call you names, make threats, whatever,” says Bill Konopnicki, a Republican who served with Pearce in the House for several years. “His hands, he says, are clean. But the fact is he’s been in law enforcement, and he knows how to apply pressure [that is] totally inappropriate for the Legislature.”

Pearce says the stories of intimidation have been overblown, and he disputes the characterization that he is a bully. Instead, he embraces the “bulldog” label that his supporters have given him.

“I always have been that way, since I was a young man,” he says. “As a kid, you could ask me nicely and I’d have done anything for you, but the element of force is something I resisted. If there was a fistfight, there was a fistfight.”

Confrontation to Coaltion?

Even now, Pearce bristles when confronted by anyone who questions his authority.

The day after the 2010 general election, Pearce said on television that Governor Brewer owes her election to him because she went from underdog to frontrunner after signing Senate Bill 1070.

Several weeks later, Pearce called a veteran Republican lawmaker a “pandering crybaby” after the lawmaker suggested that Pearce should reconsider some committee chairmanship assignments.

In November, Pearce was elected president of the Senate by his Republican colleagues in a closed-door meeting at a Phoenix hotel. According to those in attendance, Pearce narrowly defeated at least two others who had sought the position; several incoming freshmen lawmakers who Pearce had endorsed during the election turned the tide in his favor.

Republican Senator Don Shooter, elected in November was elected to his first term in the Arizona Legislature, said he voted for Pearce because of the challenges the state faces.
“I felt with the budget difficulties coming to Arizona, we need somebody made out of steel,” Shooter says. “I feel that Russell Pearce has been tried by fire and he has the testosterone levels for whatever may be coming.”

As the tension grows among various factions within the Republican Party, even some of Pearce’s allies say he’ll have to make fundamental changes to become an effective leader.
“I think that concern is valid. He has to step away from being that soldier on the field,” says Republican Representative Frank Antenori, a former Green Beret. “He has to no longer be General Patton. He has to be Dwight D. Eisenhower.”

Matt Bunk is managing editor of the Arizona Capitol Times and has covered the Arizona Legislature for five years. Evan Wyloge is a reporter for the Arizona Capitol Times who has covered the Arizona Legislature for two years.

Position: Arizona Senate president
Party: Republican
Age: 63
Born: Mesa, Ariz.
Occupation: Full-time legislator
Previous occupations: Chief deputy, Maricopa County Sheriff’s Office; pro-tem judge for Maricopa County Justice courts; North Mesa justice of the peace; state Motor Vehicle Division director; Governor’s Office of Highway Safety director
Education: B.A., management, University of Phoenix, 1997
Legislative experience: Arizona House 2001-08; Arizona Senate since 2009

Immigration Frustration

Arizona’s controversial immigration legislation has deep roots.

By Jim Small

CactusMake no mistake: Arizona’s controversial Senate Bill 1070 was not an idea that sprang forth from notes scribbled on a napkin at a cocktail party. Nor, as some media outlets have reported, were the seeds for the immigration law planted at a shadowy confab of legislators and private industry.

Bill sponsor Senator Russell Pearce, in fact, has been working on iterations of the legislation to eliminate so-called “sanctuary cities” since 2006. Although cities across the state had enacted procedures for local police to use when encountering suspected illegal immigrants, some policies allowed for more discretion than others.

Everywhere he looked, however, Pearce saw government turning a blind eye to what he often characterized as an “illegal immigrant invasion” of both his state, where there are an estimated 500,000 illegal immigrants, and his country. The conscious decisions by law enforcement agencies not to turn suspected illegal immigrants over to federal authorities—or not to check immigration status—was directly linked, in Pearce’s estimation, to violent crime across America. If law enforcement agencies would do what their name implied, he said over and over, Arizona could heal many of its ills.

Moments before the Senate approved the final version and sent it to Governor Jan Brewer, Pearce explained how he expected the bill to affect Arizona.

“We’ll have less crime. We’ll have lower taxes. We’ll have safer neighborhoods. We’ll have shorter lines in emergency rooms. We’ll have smaller classrooms,” he said during a speech on the floor.

A majority of the frustrated electorate in Arizona cheered its approval. Until it passed the Legislature, most political observers had viewed the new law only through the traditional partisan lenses: It would play well with Republicans, but Democrats would universally oppose it, and independents would be split.

The fear that opposition could be an albatross around some Republicans’ necks in hotly contested primary races was a prime reason some supported the bill. A year earlier, six GOP legislators were absent when similar legislation came to the floor and failed by only a handful of votes. They were publicly castigated by Pearce, who dubbed them “the sanctuary six” and urged his supporters to work to unseat them. Three of them were re-elected, and one lost to a candidate backed by Pearce. Another also lost, but Pearce did not play a role in the race, and the last left because of term limits.

This time around, every Republican except one voted for the bill, even though some publicly acknowledged they felt as though they had no choice.

“This bill is filled with problems, but I feel obligated to vote aye,” Representative Bill Konopnicki said on the House floor.

Support for the measure ultimately transcended traditional ideological boundaries. Two days before Brewer signed the bill, a Rasmussen Reports poll showed 70 percent of Arizona voters supported it. Not only did 84 percent of Republicans in that poll favor the bill, but so did 51 percent of Democrats and 69 percent of independents.

While those numbers came as a surprise to some, they shouldn’t have. As the federal government tightened control of the border in highly populated areas of California, New Mexico and Texas in 2000, it did not do the same in Arizona. The result was an enforcement policy that seemingly funneled illegal immigrants and drug smuggling routes into the Grand Canyon State.
That bred frustration among voters in both political parties who felt the federal government wasn’t doing anything about the problem. That frustration manifested itself at the polls: Since 2004, voters have routinely and overwhelmingly backed ballot measures supported by Pearce and other immigration hardliners who want to reduce public benefits for illegal immigrants and otherwise make the state more inhospitable to them.

At its core, that’s the goal of Senate Bill 1070 and the other anti-illegal-immigration laws on the books in Arizona. Pearce is fond of using Disneyland as an analogy to Arizona. “If you turn off the rides and shut off the lights,” he has said countless times, “people will go home.”

Jim Small is editor of the Yellow Sheet Report, a political newsletter in Arizona, who has covered the Arizona Legislature for seven years.

Down to the Details 

By Ann Morse

States always have been partners in refugee and immigrant policy. Nearly 100 years ago, New Jersey lawmakers enacted legislation supporting evening classes in English and civics for foreign born residents.

As recently as the 1990s, state legislatures responded to new federal mandates and cost-shifts in welfare reform by creating state-funded programs for legal immigrants and refugees.
Today, state lawmakers continue to pass immigration legislation ranging from education and employment to law enforcement and human trafficking. Fourteen states now require state agencies and contractors to use E-Verify to determine whether an employee is legally able to work in the country. In a few states, private employers are required to use the system as well. And new agreements between state law enforcement and federal immigration agencies address specific criminal activities, such as human trafficking.

State legislatures also are passing a record number of resolutions that acknowledge the contributions of immigrants and immigrant-serving or-ganizations, as well as asking Congress and the president to secure the borders and to enact immigration reforms.

Here’s what happened in 2010.

Every state in regular session considered laws related to immigrants or immigration, with 46 states and the District of Columbia enacting a total of 346 laws and resolutions. Montana, Nevada, North Dakota and Texas were not in regular session in 2010.

Arizona’s immigration enforcement laws—Senate Bill 1070 and House Bill 2162—received considerable national attention in 2010. These laws added new state requirements, crimes and penalties related to enforcement of immigration laws.

Before the laws went into effect, the U.S. Department of Justice sought an injunction, arguing the laws were unconstitutional. A federal district court judge granted the injunction in part and suspended enforcement of some provisions, including ones that would allow Arizona police officers to determine the immigration status of anyone during a lawful stop and require people to carry their alien registration documents.

Provisions of the law left intact include prohibiting state agencies from limiting enforcement of immigration laws; allowing residents to sue state agencies that enact such policies; and creating a crime for stopping a motor vehicle to pick up day laborers. Arizona Governor Jan Brewer appealed the injunction and the case was argued before the 9th U.S. Circuit Court of Appeals in November.

Bills similar to Arizona’s were subsequently introduced in six state legislatures—Illinois, Michigan, Minnesota, South Carolina, Pennsylvania and Rhode Island—but none was enacted. The California Senate, Illinois House and New York Senate introduced resolutions opposing the Arizona law, while Tennessee enacted a resolution supporting it. Resolutions both supporting and opposing Arizona’s law were introduced in the Michigan House.

As in previous years, the most common issues of all the immigration laws considered last year were employment, law enforcement, and ID and driver’s licenses.

Several states passed laws requiring sex offenders to register identification, passport or immigration documents. Eight states addressed human trafficking by prohibiting the destruction of immigration papers and providing shelter for victims of trafficking.

A new area of concern for state legislators was child abductions. Alabama, Florida and Tennessee enacted laws to help prevent them.

Resolutions hit a new high of 138 in 2010. States urged Congress to fund E-Verify, reimburse them for emergency health care to undocumented aliens, enact comprehensive immigration reform, enact the International Violence Against Women Act, secure borders, fund services for migrants, pass Filipino family reunification, address refugees in Darfur and Chad, and provide Haitians with temporary protected status.

In 2011, states are considering their options to respond to continued immigration challenges and opportunities for supporting immigrant integration. For example, Utah is developing the “Utah Compact” to guide Utah’s immigration discussion. Other states are introducing stricter immigration enforcement bills, with at least 12 states—Colorado, Florida, Indiana, Kentucky, Mississippi, Nebraska, Oklahoma, Oregon, South Carolina, Texas, Utah and Wyoming—introducing legislation similar to Arizona’s.

Ann Morse tracks immigration issues for NCSL.