State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 14, June 2008
In this Issue:
Behind the Headlines
Ballot Initiatives
Existing Bills
Local Legislation
IRLI Tip of the Month
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Behind the Headlines
Phoenix Broadens Police Authority
Police Chief Jack Harris has announced important changes to Operation Order 1.4. Order 1.4 was implemented in 1999 and prevented police officers from inquiring into a person's immigration status. Reacting to widespread citizen discontent, fueled by news reports of capital crimes committed by illegal aliens, the new policy provides that citizenship status for all arrested individuals shall be checked. Additionally, the new policy permits officers to contact ICE when the officers come in contact with individuals who are unlawfully present in the U.S. (see article).
Farmers Branch, Texas
District Court Judge Lindsay concluded that an ordinance which prevented renting to illegal aliens was unconstitutional. This ordinance was extremely popular with the constituents of Farmers Branch and was rewritten several times (see article).
Florida — 11 Immigration Bills Fail
Multiple immigration measures were proposed in the Florida Legislature. However, none of these bills passed (see article). HB 73 was drafted with the assistance of IRLI. HB 73 contained similar language to that in Oklahoma HB 1804. HB 73 was featured in IRLI's August Legislation Bulletin.
Los Angeles Tragedy
Grabbing headlines recently — another heinous crime was committed by an illegal alien gang member — and yet another innocent life was taken. Jamiel Shaw Jr. was killed in this recent incident. This tragedy could have been averted if Los Angeles had not enacted and implemented Special Order 40. Special Order 40 provides that Los Angeles police officers and other officials shall not inquire into a person's immigration status. Here, the illegal alien perpetrator was just released from jail. Because the arresting police officer was prevented from inquiring into the immigration status — this criminal was released to wreak havoc on society. If Special Order 40 was not in place, the Immigration and Customs Enforcement (ICE) would have been notified about this illegal alien and would have detained and deported this person. Understandably, Jamiel's family is outraged. His family would like to challenge Los Angeles' Special Order 40 (see article).
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Ballot Initiatives
States have not only been introducing a record number of immigration legislation, but some have taken these issues straight to the people — with initiatives. Trend-setting initiatives have been introduced and implemented by Arizona. Other states have begun to follow Arizona's lead.
The Arizona legislature placed several referendums relating to illegal immigration on the ballot for voter consideration including the following:
Arizona Current/Past Ballot Referendums
HB 2745 (2008)
HB 2745 was signed into law and effective on May 1, 2008. HB 2745 limits the prohibitions against knowingly or intentionally employing an unauthorized alien to employees hired after December 31, 2007, and excludes independent contractors from the definition of employee. HB 2745 requires the Arizona Attorney General (AG) to establish a Voluntary Employer Enhanced Compliance Program and establishes requirements pertaining to employers that pay hourly wages or salary by cash. This initiative also prohibits, after September 30, 2008, an agency or political subdivision from issuing a license to an individual who does not establish the individual's legal presence and a government entity from awarding a contract to any contractor or subcontractor that fails to use E-Verify. HB 2745 establishes the crime of knowingly accepting the identity of another person or entity and expands the definitions of identity theft and trafficking in the identity of another person or entity.
Sanctuary Policy/Trespass — HCR 2039 (2008)
If approved by the voters, HCR 2039 would prohibit officials, agencies and personnel of counties, cities and towns from adopting a policy ordinance or law that restricts its officials and employees from fully complying with and, to the fullest extent permitted by federal law, assisting in the enforcement of the federal immigration laws. HCR 2039 would also establish the state crime of trespassing for anyone who enters or remains in Arizona in violation of federal law.
Employer Sanctions — HB 2779 (2007)
HB 2779 prohibits intentionally or knowingly employing an unauthorized alien and establishes penalties, beginning January 1, 2008, for employers in violation of this law. HB 2779 requires all employers to use the Basic Employment Verification Pilot Program (or E-Verify program) beginning January 1, 2008, establishes an Employer Sanctions Legislative Study Committee and expands the definition of aggravated identity theft. In addition, HB 2779 appropriates $2,600,000 from the state General Fund (GF) FY 2007-08 for carrying out the provisions of the bill.
Illegal Alien Serious Felonies Bail — Prop 100 (2006)
Proposition 100 denies bail to illegal aliens when there is convincing evidence that they have committed a serious felony or if they are arrested for Driving under the Influence. A lawsuit has been brought challenging this initiative (see May Legislation Bulletin for further details on this litigation).
Punitive Damages/Awards Funds — Prop 102 (2006)
Proposition 102 denies illegal immigrants punitive damages or rewards in any civil lawsuit.
English as Official Language — Prop 103 (2006)
Proposition 103 establishes English as the official language of Arizona and requires that official actions be conducted in English. This proposition also requires the government to promote and enhance English where possible.
Arizona Taxpayer & Citizen Protect Act — Prop 200 (2004)
Proposition 200 requires that evidence of United States citizenship be presented by every person when registering to vote, that proof of identification be presented by every voter at the polling place prior to voting, that state and local governments verify the identity of all applicants for certain public benefits and that government employees report United States immigration law violations of illegal aliens that applied for public benefits. Additionally it requires the submission of documentation demonstrating lawful presence and prohibits self-declaration of lawful presence in the U.S. for certain public programs. IRLI brought litigation to enforce this proposition as approved by the voters — since the Governor and Attorney General limited implementation of this proposition (see the Litigation section for details and complaint).
Public Program Eligibility — Prop 300 (2006)
Proposition 300 prohibits the state government from offering adult education classes, tuition waivers, or childcare assistance to illegal aliens.
Arkansas Initiative
Secure Arkansas has sponsored a ballot measure that would require verification of lawful status to be eligible for public benefits. Presently, Secure Arkansas is obtaining the required signatures to place the proposal on the November ballot. Arkansas Governor Beebe has openly opposed this initiative claiming that there are currently laws on the books dealing with these public benefits issues (see article).
Washington Initiative
Citizens in Washington are currently seeking the required signatures in order to place an initiative on the ballot. The proposal mandates all employers register for the E-Verify program (formerly Basic Pilot Program) and requires agencies to utilize the Systematic Alien Verification for Entitlement (SAVE) program to verify citizenship status of a public benefit applicant. The initiative also permits implementation of a 287(g) program (see July Legislation Bulletin for more information on 287(g) agreements). Activists must acquire the signatures prior to December 31, 2008, to place this proposal on the November ballot. IRLI assisted in drafting this important initiative.
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Existing Bills
Louisiana HB 1357
With an overwhelming majority HB 1357 passed the House on May 13, 2008. HB 1357 provides that it shall be a crime punishable up to $2000 or one year in prison to harbor, shelter or conceal an illegal alien. The passed version of the bill provides that immigration attorneys and organizations have permissible affirmative defenses. According to the author, Representative Geymann, the goal of this legislation is to impede the practice of transporting illegal immigrants over the border.
Louisiana HB 1358
HB 1358 passed the house in conjunction with HB 1357. HB 1358 proscribes the transportation of illegal aliens and contains the same affirmative defenses listed above.
Pennsylvania HB 2519
HB 2519 was introduced in May and would modify the Pennsylvania Election Code. Presently, first time voters are only required to present voter identification cards (see article). This legislation is modeled after Indiana legislation which was recently upheld by the U.S. Supreme Court. The high Court found that Indiana had relevant and legitimate state interests which justified the minor burden to Indiana voters of obtaining proper identification (see IRLI May Legislation Bulletin for further information on this Supreme Court case).
South Carolina H 4400
H 4400 passed both houses and was signed into law by Governor Sanford. This comprehensive bill contains provisions providing that a prisoner or person confined in jail shall be checked for lawful status, all employers must enroll in the E-Verify program and prohibits illegal aliens from obtaining public benefits. H 4400 appears to contain similar language to the Oklahoma HB 1804. However, H 4400 includes a few questionable provisions. Although the legislature likely did not intend to directly impose civil sanctions on companies that employ unauthorized aliens — the language calls for such a penalty. IRLI believes that this action is preempted by federal law (see June Legislation on further information why this is not permitted). In addition, H 4400 contains a clause providing which documentation is appropriate for an employee to demonstrate they are authorized to work in this country. This list is not all inclusive — since the Immigration Reform and Control Act (IRCA) has a more expansive list of acceptable documents to demonstrate authorized status. IRLI believes, H 4400 will likely be subject to a legal challenge because the bill attempts to limit and contradicts federal law (or the I-9 requirements, 8 U.S.C. §1324a(b)(1)(B)).
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Local Legislation
Frederick County, Maryland Commissioner Thompson's proposal to keep a count of the number of illegal alien students has failed. The proposed ordinance would have authorized the Commissioners to withhold part of the Board of Education's funding until this calculation was taken. Potentially impacted schools stated that they feared that such questioning could have limited future federal funding (see article).
Montgomery, Alabama The Montgomery City Council passed an ordinance that provides for the suspension and revocation of a company's business if they are found to employ unauthorized aliens (see article). Federal judges have upheld local and state laws which have targeted an employer's business license for employing unauthorized aliens (see February/March Legislation Bulletin for further details on 2 recent court cases).
Suffolk County, New York Suffolk County adopted a resolution in May that mandates that a company shall be denied a business license if they do not include a representation (in their business application) that they comply with 8 U.S.C. §1324a (or that they do not employ unauthorized aliens) and all tax laws. The resolution also provides that an employer shall be fined $750-$1500 for discriminating against a lawful worker (see article).
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Attrition Through Enforcement
IRLI Tip of the Month:
Attrition through enforcement works. Illegal aliens will be encouraged to return home by denying them access to jobs and closing loopholes in government programs (see FAIR's web site for further details on this concept). The media outlets have been flooded with reports that states taking tough stances on illegal immigration (e.g. Arizona and Oklahoma) have reported a mass exodus of illegal immigrants. States will encounter similar results if they enact legislation with carefully crafted language.
However, the desired effect will be short-lived if the language has not been drafted to avoid conflicting with federal immigration law. This point cannot be emphasized enough - it is absolutely vital that legislation contain language that can withstand a legal challenge.
Any legislation propounded to halt illegal immigration within a state will undeniably be challenged in court by our well-funded and eager opposition. A bill that does not comport with federal immigration law or is preempted by federal law will not stand. A judge will readily vacate or overturn this legislation. A vacated bill has no hope of achieving attrition through enforcement.
Although there are limitations binding states, there are numerous aspects of illegal immigration that a state can permissibly attack. IRLI's Model Taxpayer and Citizen Protection Act contains model language targeting aspects, which IRLI believes, are acceptable means of combating this problem. There are five sections in this Act: (1) cooperation with federal immigration officials, (2) taxpayer protection, (3) U.S. worker protections, (4) identity theft and (5) monitoring the growth impacts of mass immigration. This omnibus model Act is directed at various illegal immigration issues.
IRLI assists legislators in drafting sound wording that can withstand a legal challenge. Please contact IRLI if you have any questions.