The lack of space to discuss what is reasonable and unreasonable for the state to do is another indication of how broken our political system has become.
ROBERT ROBB
I am not entirely unsympathetic to the argument that states should have independent authority to take action to reduce the presence and consequences of illegal immigration. However, the efforts of Arizona GOP lawmakers to take such action are premature, imprudent, and not fully thought out.
The most consequential bill (Senate Bill 1231) would make illegal entry and presence a state crime. The state crime would be adjudicated in state courts. Among other punishments, state judges could order the deportation of offenders.
The bill passed on a party-line vote and was vetoed by Gov. Katie Hobbs yesterday.
Arizona previously sought to establish state immigration crimes in SB 1070. Those provisions of that bill were struck down by the U.S. Supreme Court in the 2012 Arizona v. United States decision.
The court majority found that, by enacting a comprehensive immigration regimen, Congress intended to preempt the policy arena. States could cooperate, as provided in federal law, in federal enforcement of immigration laws. But they couldn’t create and enforce their own immigration offenses.
The Arizona GOP lawmakers are supremely confident that the current court, with a larger conservative contingent, would decide differently if the issue comes back before them. That’s possible but far from certain.
The SB 1070 decision was 5-3. If the issue of state immigration crimes and enforcement were to percolate back up to the high court, the three liberal justices – Sonia Sotomayor, Elana Kagan, and Ketanji Brown Jackson – would undoubtedly still find that Congress had preempted the field. Chief Justice John Roberts was in the 2012 majority and would be highly unlikely to change his mind. That means a reversal would require a clean sweep of the remaining conservative jurists.
There were three separate and mostly dissenting opinions in Arizona v. United States by conservative justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
Scalia’s was the most expansive, finding essentially that states have dual sovereignty regarding immigration and could do what they want short of excluding those whom federal law would admit, or admitting those whom federal law would exclude.
Neither Thomas nor Alito joined Scalia’s expansive dissent, even though Thomas is a skeptic generally about assertions of implied field preemption. Instead, they focused on whether what Arizona was attempting to do explicitly conflicted with federal law, and found that it didn’t in places where the majority found that it did or was preempted.
Where the three new conservative justices – Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett – would land is impossible to anticipate. It is entirely possible that one or more of them will find the argument of field preemption persuasive, in which case the outcome would be no different than it was in 2012.
SB 1231 is poorly constructed to relitigate the issue of state immigration authority. It is highly unlikely that the high court would find that state judges have unilateral and independent authority to order deportations. SB 1231 asserts that state judges have that authority even if there are federal proceedings underway to determine the immigration status of the potential deportee. That would certainly seem in conflict with federal law, flunking even the Thomas-Alito test.
SB 1231 mirrors a bill enacted in Texas (SB 4) that is already being litigated. Since the Texas bill is already on the litigation train, moving forward with a mirror Arizona bill would be premature and imprudent. If Texas is already committed to taking the issue through the courts up to the Supremes, why should Arizona taxpayers pay to contest the same legal issues at a slower pace? Hobbs cited the litigation expense in her otherwise spare veto message.
Prudent governance would call for waiting for the Texas case to be fully litigated and then assess, in light of that result, what more, if anything, Arizona could do in the realm of immigration enforcement.
Given the inevitability of a veto, this probably wasn’t a true attempt at governance, prudent or otherwise. It was the gathering of a political talking point for the 2024 legislative elections, when control of the Legislature is actually up for grabs. Republicans want to make illegal immigration an issue in the state legislative races. The troublesome details about SB 1231 won’t make it through to campaign rhetoric.
In contrast to SB 1231, HCR 2060 is an attempt at governance, since it would bypass the governor and be put directly on the ballot for voters to decide. There is, of course, political calculation in putting it on the ballot. But, if passed, it will become law. That makes the lack of attention to detail in it even more troublesome.
The objectives of HCR 2060 are two-fold: First, beef up enforcement of the mandatory use of E-Verify by state employers to ensure that new hires are legally eligible. Second, to the extent permitted by federal law, deny public welfare benefits to illegal immigrants.
There are elements of HCR 2060’s E-Verify provisions that are meritorious. E-Verify is a federal program that employers can use to confirm electronically that new hires are legally eligible to work in the country. At the national level, the program is voluntary, except for federal contractors. In Arizona, state law makes it mandatory for all employers.
HCR 2060 would make an exception for new hires with an Arizona driver’s license, for which proof of legal presence is already required. E-Verify isn’t much of an administrative burden to use. But it makes sense not to require it when an employer already has other vetted evidence of legal eligibility.
The major problems come with the benefit provisions of HCR 2060. The referral, as it passed the House, requires state, county, and city agencies dispensing public welfare benefits, expansively defined, to determine eligibility by also using the E-Verify system.
However, E-Verify is intended to be used only to confirm legal work eligibility. There’s little reason to believe that the federal government would agree to allow it to be used to determine eligibility for benefit programs.
Moreover, the federal government already has a parallel system to determine eligibility for federal benefit programs, such as Medicaid and food stamps, called Systematic Alien Verification for Entitlements, or SAVE. There is already a federal requirement that the SAVE system be used for many federal benefit programs administered by the states.
As it passed the House, HCR 2060 would have actually resulted in some state-administered federal benefit programs having to run new beneficiaries through both E-Verify and SAVE. Which could yield different answers. There is a small subset of legal immigrants who are eligible for some federal benefit programs but ineligible to work. They receive a special Social Security card indicating their status. They could get a green light from SAVE but a red light from E-Verify.
HCR 2060’s prime sponsor, House Speaker Ben Toma, who is one of the adults in the GOP legislative caucuses, told me that he is looking at the appropriate respective roles for E-Verify and SAVE as the measure works its way through the Senate. That’s to his credit. But the referral shouldn’t have made its way through the House with such fundamental flaws.
It is not clear what programs outside of state-administered federal benefit programs already using the SAVE system would be caught up in the measure’s expansive definition of public welfare. Which is part of what makes a referral to avoid engaging the Democratic governor unwise and imprudent.
Because of the Voter Protection Act, it is very difficult for the Legislature to fix what voters have approved if problems arise. Legislating is an imperfect and iterative process. Unintended consequences are the rule, not the exception. At this point, HCR 2060 is in significant respects a leap in the dark.
Republicans are probably right that Hobbs will veto anything that cracks down on illegal immigration, given the reflexive negative response among important Democratic constituencies. That wasn’t always the case. In fact, the state law requiring that Arizona employers use the E-Verify system was championed by Democratic governor Janet Napolitano, among others.
There should be space for a productive discussion about what is reasonable and unreasonable for the state to do to reduce the presence and consequences of illegal immigration. That such a space doesn’t exist is yet one more indication of just how broken our political system has become.
Reach Robb at robtrobb@gmail.com.
