State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 13, May 2008
In this Issue:
Behind the Headlines
Bills of Interest
Bills to Watch
Local Legislation
IRLI Tip of the Month
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Behind the Headlines
LITIGATION
Supreme Court Upholds Voter ID Law
The United States Supreme Court on April 28 upheld Indiana Public Law 109-2005, which requires voters to present a government-issued photo ID in order to vote (see Supreme Court Opinion). Opponents alleged that the Indiana requirement substantially burdened a person's right to vote, in violation of the 14th Amendment of the Constitution. In an attempt to substantiate their claim, the opponents claimed that 989,000 individuals in Indiana are without acceptable photo identification. Indiana argued that its interests in protecting the integrity and reliability of the electoral process could not be viewed as invidious.
The decision affirmed the Seventh District Court's finding that there was insufficient evidence for a facial attack on this law. The Court concluded that the State had relevant and legitimate state interests, which justified the minor burdens imposed on Indiana voters. An important consideration for the Court was that voters can obtain Indiana state identification cards for free.
The case is significant for immigration reform. It supports the validity of concerns about fraudulent alien voting that were upheld by the Ninth Circuit Court of Appeals in the 2005-06 litigation defending Arizona's Proposition 200. The decision also supports the evolving constitutional doctrine that illegal aliens and ideological opponents of local and state enforcement cannot bring a "facial" challenge based on "field preemption." This is a radical theory that the "field" of enforcement has been exclusively reserved by Congress to a handful of uniformed federal agents, and prohibits the state from implementing new laws of this type.
Update on Oklahoma HB 1804 Lawsuit
An indirect measure of the continuing impact of the omnibus approach to state enforcement, promoted by IRLI, is the number of legal challenges to the landmark Oklahoma Taxpayers and Citizens Protection Act of 2007, HB 1804. Yet another plaintiff has joined the fray with a taxpayer standing suit in state court. The new plaintiff, reportedly the son of professor at a state law school, is claiming that the implementation of HB 1804 will allegedly create a "state bureau of immigration," an illegal expenditure of public funds under the Oklahoma Constitution. (see April Legislation Bulletin for details.) District Judge Jefferson Sellers rejected the state's motion to dismiss in early April.
Arizona Lawsuit Challenges Denial of Bail to Illegal Aliens
Arizona Proposition 100 was a very successful 2006 ballot initiative, enacted by a 78% majority, which amended the Arizona Constitution, section 22, to deny bail to illegal aliens charged with serious felonies. Not surprisingly, it has attracted the attention of the ACLU and MALDEF, who have filed a federal class action lawsuit alleging multiple constitutional violations, Lopez-Valenzuela et al v. Maricopa County et al., (Dist. Ct. Arizona No. CV08-660). (see article). MALDEF alleges that requiring a defendant in a criminal case to disclose his immigration status amounts to self-incrimination. Maricopa County District Attorney Andrew Thomas, a principle author of Proposition 100, has pledged to vigorously defend the measure.
The Arizona initiative took a different approach to this problem than the IRLI approach, reflected in OK HB 1804. Arizona categorically denies an individualized bail hearing to persons charged with a "serious felony offense" who "entered or remained in the United States illegally" and where "the proof is evident or the presumption is great as to the present charge." The Arizona legislature has since then modified the state bail statute to lower the standard of proof of illegal immigration status to probable cause.
Oklahoma, O.S. 22-171.2.C, drafted with IRLI assistance, created a "rebuttable presumption" that a person detained on a criminal charge, whose status as an illegal alien has been verified by the jail (also an HB 1804 requirement) is at risk of flight. The Oklahoma statute, unlike the Arizona measure, contemplates an individualized bail hearing where the alien can present evidence that he was lawfully admitted to the United States. The litigation is in its early stages, and the parties have not yet briefed the court on their respective theories.
ENACTED/VETOED BILLS OR ORDINANCES
Arizona Governor Vetoes IRLI Local Cooperation Measure
On April 28, Governor Napolitano vetoed AZ HB 2807. HB 2807 is a local law enforcement cooperation and anti-sanctuary measure, based on language drafted by IRLI for a Phoenix ballot initiative in 2005. The measure requires enforcement cooperation "to the full extent permitted by law" and prohibits restrictions on information sharing that mirror the federal standards from the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). Although section C gives local jurisdictions the flexibility to partner with ICE in a 287(g) arrangement, or develop procedures tailored to local circumstances, Gov. Napolitano claimed that it was "unnecessary" and would impose additional costs (see article). The veto is expected to accelerate efforts by Arizona House majority leader Rep. Russell Pearce to place a similar measure on the November ballot as a referendum.
Maine Requires Proof of Citizenship for Driver's License
Responding to public criticism that Maine permitted illegal aliens to receive driver's licenses, on April 18 Governor Baldacci signed into law a bill mandating lawful status to obtain a license (see article). Maine became the 45th state to require confirmation of lawful presence for license applicants. Maine had been one of the last hold-out states to undertake implementation of the REAL ID. By signing the measure, Baldacci qualified Maine for an extension to bring the state in compliance with the REAL ID Act (until June 2009).
IRLI believes that illegal aliens are barred as a matter of federal law from claiming legal residence in a state. In almost all 50 states, domicile requires a two-part test, physical presence in the jurisdiction, as well as intent to remain permanently. An illegal alien as a matter of law lacks the requisite intent to permanently remain in the United States, since they are subject to detention and deportation at any moment. (See Toll v. Moreno, 458 U.S. 1 (1982)). Any attempt by a state to circumvent federal immigration law by recognizing illegal aliens as state residents for official ID purposes is an unconstitutional "regulation of immigration."
Missouri Legislation Passes
SB 858 was signed by Governor Blunt in early April. SB 858 prohibits the employment of illegal aliens, provides that only persons with lawful status may obtain public benefits, and prohibits local governments from restricting officials from communicating with federal immigration officials. IRLI believes that this comprehensive bill is a step in the right direction since states undeniably deal with the adverse impacts caused by illegal immigration.
Prince William County Resolution Weakened
Amid fierce controversy, the Prince William County, Virginia Board of Supervisors on April 29th made changes that appear to restrict police discretion to inquire into a personŐs immigration status in the investigation or pre-arrest stage. IRLI assisted in drafting the original resolution that passed on July 10th (see July Legislation Bulletin for details on this resolution).
Restricting an officer's discretion to ask about citizenship status affects public safety. If the law enforcement officers who pulled over six of the 9/11 hijackers in 2001 for traffic violations had the discretion to ask their immigration status, the attacks might have been averted or disrupted. IRLI understands the reasoning behind clarifying that mandatory status verification would only occur after an arrest had been made for state or local criminal violations. However, IRLI believes that the county government lacks discretion to prohibit or restrict discretionary inquiries, so long as the Fourth Amendment requirements for lawful arrest are fully observed, and the inquiry was made within the scope of legitimate police operations.
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Bills of Interest
Alabama HR 413
HR 413, as passed by the House in April, requires the state Department of Corrections (DOC) to identify incarcerated inmates who are illegal aliens. Beginning January 1, 2009, HR 413 requires that the DOC submit an annual report to state legislators containing the number of illegal immigrants in state and county correctional facilities. HR 413 also requires the DOC to take appropriate actions to facilitate the deportation of these illegal immigrants. IRLI believes this bill is lacking any methods or means for facilitating the deportation of the incarcerated illegal aliens. HR 413 should have specified the method for conducting this task. As it stands now, the wording is too ambiguous.
Alabama SB 590
SB 590 was also introduced in April. SB 590 requires that a person over 19 years of age must demonstrate lawful status before receiving public benefits. The language and provisions closely follow IRLI variants enacted by Virginia and Georgia.
Georgia SB 340
SB 340 passed in the House in early April, after getting approval in the Senate a few months prior. SB 340 prohibits any local governing body from enforcing a sanctuary city policy. SB 340 explicitly defines what a sanctuary city policy would be and this comports with federal immigration law (8 U.S.C. §1373).
Iowa HF 2686
HB 2686 was introduced in mid April and provides that identity theft is a misdemeanor. HB 2686 also mandates that employers sign an affirmation or oath that they examined the facial validity of an employee's driver's license. Employers must make a photocopy of the driver's license and retain the copy for one year. Failure to comply with these requirements would subject the employer to a fine of up to $1000. False affirmations would be made a felony offense. Fining an employer for not verifying an employee's driver's license is not preempted by federal law. However, HB 2686 then adds a separate fines on the employer of up to $10,000 for employing an unauthorized alien, a sanction expressly barred by the federal employer sanctions statute, 8 U.S.C. 1324a(h)(2).
Ohio SB 260
SB 260 passed the Senate in mid April. SB 260 is an anti-sanctuary measure which bars a municipal corporation from enacting an ordinance, policy or directive which prohibits officials from cooperating with federal immigration authorities. IRLI believes SB 260 comports with federal statutes §§1373 and 1644 (see January Legislation Bulletin for details). SB 260 also authorizes a county Sheriff to render assistance to federal officials relating to the investigation, apprehension or detention of illegal aliens. Elected Sheriffs in Ohio have been very active in developing aggressive enforcement policies, based on close but informal working relationships with ICE special agents in charge assigned to the state.
Oklahoma SB 163 SB 163 passed the House in April and will now be examined by the Senate. SB 163, sponsored by Representative Terrill, provides that English shall be the official language. The legislation closely adheres to the successful model language developed by the Pro-English advocacy organization, based in Rosslyn Virginia.
Rhode Island H 7107
H 7107 was passed by the house in April. H 7107 mandates that all employers in the state shall apply and participate in the federal E-Verify program to check the lawful status of employees. Employers would face fines up to $5000 for failure to complete the application process in a timely manner. Enrollment deadlines are staggered, depending on number of employees, during 2009. H 1707 also imposes a fine of $50 per day for each employee determined by E-Verify to lack work authorization who remains on the job. While there is no conflict between federal law and the fine for failure to enroll, it is not clear whether the fines for failure to terminate a confirmed unauthorized worker would survive a preemption challenge.
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Bills to Watch
California AB 2317
AB 2317 would have required an individual to prove citizenship status before being permitted to vote. The measure failed to pass out of committee in April.
California SB 160
Legislators are attempting to pass the California DREAM Act that would expand eligibility of illegal aliens to obtain resident tuition and state financial aid. SB 160 would allow illegal aliens who have attended "secondary school" in California to receive resident tuition and financial aid in the California community college and State university systems. The legislation is an explicit attempt to circumvent a pending IRLI class action lawsuit in state appellate court, Rodriguez, v. Board of Regents et al., which would declare the existing measure unconstitutional and discriminatory. The statute currently under challenge required illegal aliens to obtain a high school diploma; SB 160 would expand the controversial benefits program to institutions and night schools.
California AB 2418
AB 2418 failed to pass the Senate in mid April. AB 2418 would have amended the Penal Code to deny bail to illegal aliens charged with violent or gang-related felonies, as defined by California law, and require each county Sheriff, district attorney, and trial court to report all illegal aliens charged with a felony to the U.S. Department of Justice. The legislation did not specify how or at what point in the detention process the detaineeŐs immigration status would be verified.
California AB 2422
AB 2422 also failed to pass the Assembly in mid April. AB 2422 would have required the Department of Corrections to identify inmates that are unlawfully in the country. The department then would contact federal immigration authorities. Correctional officers would have been permitted to check lawful status of inmates and contact federal immigration authorities.
South Carolina H 3023
H 3023 was passed by the Senate is late April. H 3023 provides for mandatory enrollment in the E-Verify program for all employees within the state. Employees must demonstrate citizenship status using any one of three prescribed documents. IRLI believes, among other fatal flaws, this type of provision contradicts prescribed federal requirements for employer certifications on Form I-9, which gives newly hired workers several different options for presentation of work authorization documents. H 3023 also permits the Attorney General for the state to enter into a 287(g) agreement (see July Legislation Bulletin for further details on these agreements).
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Local Legislation
Contra Costa County, California Pro open border groups are pushing for another city in California to distribute "municipal ID cards" to illegal aliens. The East Bay jurisdiction would likely duplicate the ordinance enacted in San Francisco (see article). This tactic exemplifies local defiance of federal law, in particular the encouraging, harboring and aiding illegal aliens (8 U.S.C. §1324(a)(1)(A)). IRLI believes that this approach is also unlawful under California's taxpayer protection statute, as an impermissible and illegal use of public funds, and will have adverse impacts on the environment by encouraging an influx of illegal aliens into the area, causing an increase in population growth and in turn creating more demand for the limited resources, and causing increased traffic congestion and pollution.
Frederick, Maryland County commissioners passed a resolution making English the official language (see article). Commissioner Jenkins proposed the resolution, but voted against it — he claims that the resolution will only maintain the status quo.
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State Legislation Must Comport with Federal Statutes
IRLI Tip of the Month:
A pattern is developing — each year since 2002, increasing numbers of state legislators are introducing and enacting legislation to target the illegal immigration problem. The bills are necessary steps in the right direction. However, a majority of these introduced/enacted bills regrettably contain provisions or language that conflicts with federal law. It can be predicted that the opposition will challenge these bills in court and there is a high probability that the bills will never be implemented.
State legislative language that does not employ and respect the classifications contained in federal immigration law is presumptively an impermissible state regulation of immigration. Yet state legislators, exposed to the urgency of constituent concerns, continue to hurriedly introduce bills that are incompatible with the federal immigration scheme. Citizens and activists are hopeful that these bills will have the desired effect — but find themselves discouraged and confused when implementation is blocked by political opponents, often through legal challenges. Regardless of the good intentions behind flawed legislation, when the opposition succeeds in court, this only emboldens the opposition and deters any future action by other legislators.
IRLI assists legislators in drafting sound wording that can withstand a legal challenge. Please contact IRLI to learn if our specialized capabilities can help ensure that a given legislative approach will be effective and sustainable.