State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 12, April 2008

In this Issue:
Behind the Headlines
New Bills
Local Legislation
IRLI Tip of the Month

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Behind the Headlines

Maryland's Two-tiered License Contortions

On January 12, Governor O'Malley proposed a plan for a two-tiered driver's license system. Maryland is one of seven states that issues driver's licenses to illegal aliens, by allowing them to waive the social security number requirement imposed on citizens and legal residents. The Governor's plan would have included a non-REAL ID driver's certificate for illegal aliens (see 1/12/08 Washington Post article). New York Governor Eliot Spitzer abandoned a similar two-tier plan in 2007 after vociferous public opposition erupted (see October Bulletin for details on New York's plan and the legality of this type of proposal).

However, days later, Secretary Chertoff issued the final REAL ID Act regulations. On January 18, Gov. O'Malley suddenly directed Maryland transportation officials to comply with federal law by devising a secure, federally recognizable license that would be accepted as identification to board planes or enter government buildings. "We should not allow Maryland to become an island virtually alone on the East Coast" by not requiring proof of legal residence for licenses, O'Malley said. Internal feuding among Maryland's governing Democrats illustrates the dilemma that an official attempt at passive resistance to immigration law creates. The Governor's two-tier plan was first attacked by prominent illegal alien lobbyist Delegate Ana Sol Gutierrez (D) as "a scarlet letter" that authorized local police to "call federal immigration authorities." After the plan was rescinded, Del. Gutierrez accused the Governor of "betrayal" and promised to sabotage the state's deficit reduction plan in retaliation.

Michigan Driver's License Opinion Excludes Aliens as State Residents

Attorney General Mike Cox issued an important Opinion on December 27, 2007, concluding that illegal aliens cannot be considered legal residents of Michigan for purposes of driver's license eligibility because of their unlawful presence under federal immigration law. "Michigan law must be interpreted against that background of federal law when considering questions involving aliens. It would be inconsistent with that body of law to find that a person in this country illegally, who has not secured permanent alien status from the federal government, can be regarded as a permanent resident in Michigan." Opinion No. 7210.

IRLI has advised legislators and immigration group leaders for a number of years that this federal doctrine, best stated in the 1982 Supreme Court case Toll v. Moreno ( 458 U.S. 1), preempts any state or local law which deems illegal aliens to be permanent state residents for any legal purpose. Michigan was one of the seven states without a legal presence requirement, although their statute clearly stated "non-residents" were not eligible for licenses. The opinion noted that Michigan had not previously excluded illegal aliens from license eligibility out of concern for a possible equal protection dispute.

However, Attorney General Cox has now provided public officials a model analysis of how changing imperatives of national security and evolving state and federal laws means that Michigan can no longer ignore the federal bar to illegal alien claims of permanent state residence.

Oklahoma HB 1804/New Lawsuit Filed

HB 1804 has received national attention as a model omnibus state approach to targeting illegal immigration problems (see discussion in May Bulletin). IRLI assisted in drafting this successful legislation, with particular attention to legal challenges from the immigration bar. Pre-implementation challenges in federal court by anonymous illegal aliens, their religious leaders, and their employers were dismissed because of lack of standing. Federal district judge James Payne noted that illegal aliens could not bring a facial constitutional challenge to a state statute when they openly refused to comply with federal immigration law.

A second taxpayer lawsuit was filed early January, claiming that the state law unlawfully expends public funds to regulate immigration (see 1/3/08 Tulsa World ). IRLI believes the plaintiffs, like many Americans, misunderstand the fundamental legal difference between determining the terms under which an alien is admitted to the United States, and cooperating at the state level to ensure that laws essential to national sovereignty are not sabotaged by corruption or "neo-confederate" open resistance at the state and local level.

Virginia Legislature Introducing Record Number of Bills

IRLI is pleased to focus the January Bulletin on a special overview of this remarkable surge of cooperative enforcement legislation of in Virginia.

Virginia legislators intend to introduce over 100 bills targeting illegal immigration (see 1/11/08 Washington Times article). Illegal immigration has moved to center stage in the state legislature in part due to the intense public response to the recent enactment of an anti-sanctuary and public benefits verification ordinance in suburban Prince William County. (see October Bulletin). This activity, while fanned by election-year politics, is strong evidence that principled action even at the local level will not only bring local relief, but is an powerful tool to motivate more comprehensive action at the state, and ultimately the national level.

However, the representative measures featured in this Bulletin also illustrate how failure to submit state legislation to careful preemption review can leave language that is both unnecessary and unconstitutional in the proposed measure.

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New Bills

VA HB 440
HB 440 would enact the IRLI concept of a rebuttable presumption against permitting bail to an illegal alien who would be subject to deportation. Similar bills introduced in Virginia also prohibit illegal aliens from receiving bail; however they fail to treat the denial of bail as a rebuttable presumption.

IRLI believes that state and federal habeas corpus protections make an absolute denial of bail improper. However, it is both constitutional and practical for state officials imperative to deem this presumption rebuttable to protect those with lawful status. The rebuttable presumption concept was included in Oklahoma HB 1804 and is being implemented in that state.

Cooperative Local-Federal Enforcement Agreements

VA SB 433 SB 433 requires the Governor to enter into a memorandum of agreement with the Department of Homeland Security to implement a cooperative agreement between the local officers and federal immigration officers. States who voluntarily execute these agreements obtain important federal legal protections for their officers authorized by 8 U.S.C. §1357(g) (see July Bulletin for details).

Correctional Facilities

VA HB 103 HB 103 mandates that every correctional facility shall inquire into a person's lawful status and verify this status with the Immigration and Customs Enforcement (ICE). This information shall be reported to the state Central Criminal Records Exchange. State Delegate David Albo, the measure's sponsor, has been a pioneer in enacting carefully written state enforcement laws that have become models nationwide, beginning with the 2002 lawful presence test for driver's licenses.

Driver's Licenses

VA HB 186 HB 186, authored by Delegate R.G. Marshall, would further narrow Delegate Albo's requirement of submission of proof of citizenship prior to issuance of a driver's license. IRLI believes it is crucial to enact similar measures. The Real ID Act requires verification of immigration status when obtaining an identification card (see October Bulletin for further information).

Education

VA SB 434 SB 434 duplicates the federal statute which provides that illegal aliens are not eligible for any post secondary education benefits (including in-state tuition and financial aid) unless the same benefits are provided to all citizens or nationals regardless of their residency (see 8 U.S.C. §1623). South Carolina (SB 4387) and Ohio (HB 308) have introduced similar bills.

Employment Discrimination

VA HB 1249 HB 1249, sponsored by Delegate Hugo, would enact the anti-citizenship discrimination legislation drafted by IRLI (for Oklahoma) into Virginia law. HB 1249 makes in an unfair employment practice to replace an authorized worker with an unauthorized alien. The bill creates a private right of action for the aggrieved legal worker, and creates a safe harbor for employers who use the E-Verify (Basic Pilot) online system. (see September and November Bulletins for details on employment discrimination and unfair employment practices).

Employers

VA HB 1047 HB 1047 sanctions employers and labor organizations who continue to employ or refer for employment an alien without eligibility documents, and expands the unlawful act to include false representation that the alien has employment authorization documents. The penalty provision, which imposes a $100 civil penalty per each day of violation, as well as criminal liability for a Class 1 misdemeanor, includes a common flaw which would invalidate the measure if enacted. Federal law prohibits the imposition of state criminal or civil sanctions on employers, except through "licensing and similar laws." 8 U.S.C. 1324(a)(h)(2). Federal law would not cause a conflict if the sanctions were imposed on the illegal alien.

VA SB 90 SB 90 would amend the same statute as HB 1047, but through language that is more consistent with federal law and far more sweeping in scope. SB 90 would require all employers and labor organizations statewide to verify work authorization through the E-Verify program for all employees, after the acceptance of an employment offer, but before the new hire or referral begins work. Violation of the statute would remain a class 1 misdemeanor.

VA HB 227 HB 227 provides that a contractor shall submit a statement that the contractor: (1) will not knowingly employ an undocumented worker and (2) will continue to verify the lawful status of all employees using the E-Verify program.

Fraudulent Documents

VA HB 45 HB 45 provides that an individual who "fraudulently assists" an illegal immigrant "in acquiring or attempting to acquire a benefit, service, status, or privilege to which the illegal alien is not lawfully entitled" can be charged with a Class 1 misdemeanor. Florida just introduced a similar bill (SB 1364) which would classify such an offense as a felony.

Public Benefits

VA HB 1026 HB 1026 would penalize local governments that fail to comply with Virginia law. Virginia law mandates use of the Systematic Alien Verification for Entitlements (SAVE) system which would verify legal presence of an individual applying for state or locally administered public benefits. The penalty would be heavy, a denial of all funding allocated to the local jurisdiction under the general appropriations bill.

Sanctuary Policies

VA HB 367 HB 367, sponsored by Delegate Carrico, prohibits a local governing body from adopting a policy that attempts to protect illegal immigrants from detection and removal by federal authorities. The entire bill reads:

"No governing body shall adopt a policy, and no locality shall follow a policy, whether explicitly or implicitly, that serves to protect undocumented immigrants from deportation. Furthermore, no locality shall prohibit its employees from asking a person about his immigration status."

While the intent of the bill is apparent to the general reader, several common flaws appear to the specialist: the text synopsizes express federal anti-sanctuary language in 8 U.S.C. §§1373 and 1644, instead of carefully reproducing the controlling federal language, as did the Prince William County ordinance in its Ordinance. For example, "to protect undocumented immigrants from deportation" is undefined, and the bill uses the casual and non-federal term "undocumented immigrants." Furthermore, the bill refers to "deportation" instead or "removal." Since 1996, deportation only applies to legal aliens who have violated the terms of their visas, not aliens who entered the U.S. without inspection. Also, there is no mention of any enforcement procedure or remedy, an omission which will ensure wasteful litigation, should the bill become law.

Transporting/Concealing

VA HB 1248 HB 1248 adds a new code section 18.2-201.1, making transporting an alien as part of a commercial enterprise or harboring an illegal alien a Class 6 felony. The provision is a narrower version of Oklahoma HB 1804. Missouri has introduced a similar provision to penalize transporting illegal aliens as a felony (HB 1346).

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Local Legislation:

Danbury, CT
The council voted to implement a 287(g) agreement between the local law enforcement and federal immigration officials (see 1/15/08 The Advocate article).

Evanston, IL
Evanston proposed introducing an ordinance that would prohibit city officials from inquiring into immigration status. Essentially, this resolution provides that this city shall become a "sanctuary city" (see December Bulletin analysis of sanctuary ordinances).

Farmers Branch, TX
The city council of Farmers Branch passed an ordinance requiring the verification of a tenant's lawful status. Prospective tenants would be required to obtain a license. The city building inspector would then verify the applicant's lawful status (see 1/24/08 Associate Press article). This new approach follows IRLI's model adapted from the Hazelton, PA ordinance.

Mount Rainier, MD
Mount Rainier is likely to adopt an ordinance making this city a sanctuary city. The city council will vote on this ordinance on February 12th (see 1/20/08 Washington Post article). The ordinance would prohibit officers from inquiring into lawful status and would prevent communication with federal immigration officials. IRLI believes this is a clear violation of 8 U.S.C. §§1373 and 1644, which provide that no government officials shall be prevented from contacting or communicating with federal immigration officials regarding a person's lawful status.

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IRLI Tip of the Month:

Communication with Federal Immigration Authorities

It is unlawful for states or localities to prevent communication with federal immigration authorities. Pursuant to 8 U.S.C. §§1373 and 1644, no state or local government may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service (now the Immigration and Customs Enforcement) information regarding the lawful or unlawful status of an alien in the United States.

The United States Court of Appeals for the Second Circuit upheld the validity of these two sections. The City of New York v. The United States of America 179 F.3d 29 (1999). In this case, the New York Mayor enacted an Executive Order which prohibited an officer or employee from transmitting information regarding an individual's lawful status to the federal immigration authorities. Id. at 31-32. The appellate court affirmed the lower court's upholding of the facial constitutionality of these two federal statutes. The court concluded that Congress has plenary power to legislate on the subject of aliens. Furthermore, regulation of aliens is so intimately intertwined with responsibilities of the national government that federal policy in this area always takes precedence over state policy. Id. at 34.

Although these statutes have been upheld, state and local governments continue to enact ordinances or legislation to prevent state/local officials from contacting federal immigration authorities regarding an immigrant's lawful status. IRLI believes litigation against one of these violating cities could be feasible since an individual might be harmed by this prohibition. Please contact IRLI if you think have been harmed by one of these policies.