U. S. Legislative Immigration Update November 28, 2011

Right Side News Reports from the Federation for American Immigration Reform (FAIR) in this November 28, 2011 Legislative Weekly. FAIR tracks pending immigration reform moves by Congress and immigration policy directives by the President and his administration which can impact homeland security in positive or negative ways. Over immigration is detrimental to nationalism and the American way.
Obama Administration Sues to Block Utah Enforcement Lawbald_eagle_head_and_american_flag1

President Obama's Justice Department (DOJ) filed suit November 22 to enjoin provisions of Utah's "Illegal Immigration Enforcement Act" (H.B. 497), passed by the state legislature in March of this year. The DOJ lawsuit makes Utah the fourth state to be sued by the federal government over its immigration enforcement law in just over a year. Claiming that federal law preempts the legislation, the DOJ specifically seeks to block three core provisions of Utah's HB 497 — Sections 3, 10, and 11.

Section 3, the first provision the federal government seeks to enjoin, would require any law enforcement officer conducting a lawful stop, detention, or arrest, to check the immigration status of any person they arrest for a felony or Class A misdemeanor if that person is unable to provide valid identification. The provision also allows police to ask those stopped for less serious misdemeanors about their immigration status and requires them to do so only if the person is arrested and booked. The DOJ argues that federal law preempts this provision because it constitutes "non-cooperative" unilateral enforcement efforts by Utah police, and thus precludes DHS "direction and guidance" on how to handle a particular case. (DOJ Compl. ¶ 53) As such, the DOJ claims that this provision prevents DHS from directing officers "not to systematically engage in immigration enforcement … or to refrain from particular enforcement actions..." (Id. at ¶ 56) In addition, the DOJ argues that section three will lead to an increased number of immigration status inquiries, thus burdening DHS and diverting resources away from the Department's stated priorities. (Id. at ¶ 57)

Section 10, the second provision the federal government seeks to enjoin, makes it a crime for an individual to harbor, encourage the entry of, or transport an illegal alien into or within the state, for financial gain. The DOJ argues that federal law preempts this section because these activities are encompassed by the federal government's scheme for regulating immigration, which a state may not supplement. (Id. ¶ 68) The DOJ further argues that federal law only permits states to arrest individuals for smuggling, and section 10 allows Utah to not just arrest individuals for such behavior, but prosecute them as well. (Id.) Finally, the DOJ argues federal law preempts section 10 because it restricts interstate commerce by seeking to deter and prevent the movement of illegal aliens into Utah. (Id. at ¶ 69)

Section 11, the final provision the federal government seeks to enjoin, allows law enforcement officers to arrest without a warrant aliens who have a deportation order or who have been charged or convicted in another state with one or more aggravated felonies. (See 8 U.S.C. § 1101(a)(43)) The DOJ argues federal law preempts section 11 because it undermines federal apprehension and detention decisions. The DOJ complains that just because an alien has a deportation order does not mean that DHS intends to arrest and/or detain them. Accordingly, the DOJ reasons section 11 allows Utah police to contradict the federal government's decision to decline to enforce the law and is thus preempted. (DOJ Compl. ¶ 63) Moreover, the DOJ argues that section 11 authorizes the harassment and interrogation of lawfully present aliens, risking "international controversies" and thus is preempted by the federal government's authority over foreign policy.

Upon filing the lawsuit against Utah, U.S. Attorney General Eric Holder derided the emergence of state immigration enforcement laws. "A patchwork of immigration laws is not the answer and will only create further problems in our immigration system," said Holder. (DOJ Press Release, Nov. 22, 2011) "The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy," he continued. (Id.) DHS Secretary, Janet Napolitano, also commented on the lawsuit. "This kind of legislation diverts critical law enforcement resources from the most serious threats to public safety and undermines the vital trust between local jurisdictions and the communities they serve," she said. (Id.)

While the DOJ freely criticized the State's enforcement measures, the DOJ also stated it would not be challenging two Utah guest worker bills signed into law last spring, H.B. 116 and H.B. 469, despite acknowledging in its release that federal law "clearly" preempts these measures. "Given that the provisions do not take effect until 2013, and in light of the constructive conversations the department continues to have with Utah officials about these provisions pursuant to the Justice Department's long-standing policy of exploring resolution short of litigation before filing suit against a state, the department is not challenging these provisions today," the press release read. (Id.) (To learn more about the guest worker laws, read FAIR's Legislative Update, April 11, 2011)

Utah Attorney General, Mark Shurtleff, who had previously bragged that he had convinced the Obama Administration not to target Utah's package of immigration laws, announced his disappointment in the DOJ's suit. (See FAIR's Legislative Update, Apr. 11, 2011) "I'd hoped beyond hope that [the Justice Department] would stay out and send a message to states passing really extreme, enforcement-only laws," he said. (Politico, Nov. 22, 2011) Utah Governor Gary Herbert also commented on the suit, "States are involved because of frustration. I wish that the federal government would spend as much time in enforcing the laws they put in place...as they put into suing the states for trying to do their [the federal government's] job, which they are obviously not doing.

Some have already questioned whether the DOJ lawsuit is nothing more than appeal to the amnesty lobby. In May, U.S. District Judge Clark Waddoups issued a temporary restraining order at the request of the open borders groups, including the Utah Coalition of La Raza, Service Employees International Union (SEIU), and the Latin American Chamber of Commerce. That restraining order prevented all provisions of the bill from taking effect as scheduled, including the provisions the DOJ seeks to strike down with its complaint filed last week. (CNN, May 11, 2011) The next hearing on the La Raza lawsuit will take place Dec. 2, 2011. (Washington Post,Nov. 22, 2011)

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