2011 was a great year for enacting state-level Attrition Though Enforcement legislation and 2012 may well follow suit. State legislators seem to set records each year for the number of immigration-related bills introduced – the vast majority of which are enforcement-oriented – and the enforcement laws enacted have become increasingly comprehensive. These trends may continue in 2012 because the demand for enforcement solutions remains high.
Several factors will affect the number and type of bills introduced. Now that the U.S. Supreme Court has given states the green light to enact mandatory, all-employer E-Verify laws, more states will move to pass related bills unless federal legislation regains a foothold.
Let’s face it, the fact that more states are enacting enforcement laws has not gone unnoticed in legislative circles. Media reports depicted flows of illegal aliens from states with new laws, often before the legislation took effect. Public fears about illegal-alien migration – e.g., more job competition, increased public school enrollments, more demand for public benefits – are now increasing pressure on legislators to act.
Many states continue to face dire fiscal problems in 2012, so action to restrict illegal aliens from receiving public benefits may become more popular. More states may opt to use the Systematic Alien Verification of Eligibility (SAVE) system to vet public-benefit applications, especially since they are already required (in theory) to use it for certain federal benefits.
The U.S. Supreme Court is expected to weigh in by late spring on Arizona’s illegal-presence law (SB 1070). This would give most legislatures enough time to enact similar legislation if Arizona’s law is upheld. One provision under review requires police, after a lawful stop and with probable cause, to check the immigration status of people suspected to be unlawfully present. Other affected provisions mirror federal law requiring legal immigrants to carry federal alien identification documents and ban day laborers from soliciting work in public places.
It is encouraging that the Supreme Court took the case when the Obama Administration opposed its referral. After all, the Court earlier this year upheld the principle of concurrent enforcement under the Arizona E-Verify case. The principle holds that a state law is not conflict-preempted if it prohibits the same behavior already prohibited by federal law. SB 1070 uses the same language referencing federal law that held sway in the Court’s earlier ruling. Alabama’s HB 56 law falls into the same category.
Immigration-enforcement opponents routinely crow to the media about how legislation will be stifled until the Court rules. This is wishful thinking. Even if legislators decided to delay action on measures directly under Court consideration (and I don’t think they will), there are a host of other enforcement measures that will make states a less attractive place for illegal aliens to live.
Alabama was the first state to invalidate all contracts with illegal aliens, which makes it more difficult to rent an apartment, buy a car or earn a living. The state also forbids illegal aliens from conducting "business transactions" with government agencies, which serves to shut down potential streams of revenue. Both are good options to pursue. Other measures to consider include:
- Creating penalties for seeking employment while using stolen or fraudulent IDs;
- Banning business and professional licenses for illegal aliens;
- Enforcing federal laws against “harboring or transporting” of illegal aliens;
- Banning admission to public colleges/universities for illegal alien students; and
- Allowing citizens who are fired or not hired by an employer to sue if the company employs illegal workers.
Legislators in a number of states are already talking about renewing efforts to pass enforcement legislation that failed in 2011. Some pro-illegal alien measures are expected as well. A few of these proposals are discussed below. Note: Montana, Nevada, North Dakota and Texas do not hold legislative sessions in 2012.
Alabama: The state legislature is under enormous pressure from special-interest groups and a hostile media to gut or repeal the immigration-enforcement law (HB 56) passed in 2011. Thus far, legislative leaders are supporting the law and suggesting that it only requires tweaking to clarify intent.
California: After the passage of AB 131 (financial aid for illegal-alien students) in 2011, certain legislators filed a referendum that, if qualified, will allow voters to decide whether the measure will remain law. To qualify the referendum for the November 2012 ballot, around 505,000 valid voter signatures are needed before Jan. 6, 2012. Another ballot measure was filed that would set up a five-year pilot program for illegal aliens to live or work in the United States. The initiative would require California's governor to ask the president not to spend federal resources to catch or deport those enrolled in the program, and not to prosecute their employers.
Florida: House and Senate members plan to re-introduce an all-employer E-Verify bill in 2012. Senate Republican leaders blocked meaningful enforcement legislation for most of last year's session, and may be problematic again this year. Enforcement proponents are hoping that election-year politics will force their hand.
Georgia: Legislators were successful in passing a fairly comprehensive enforcement law in 2011, but left some unfinished business. One bill (HB 59) will attempt to clarify intent and language in a 2006 law that made post- secondary education a public benefit, and to make it illegal for state Board of Regents to allow illegal aliens in any public university. Another measure will seek to improve, streamline and clarify last year’s law.
Kansas: Republican lawmakers are almost certain to revive enforcement legislation, including a proposal for mandatory E-Verify. Chances are good because Democratic legislative leaders just announced a jobs proposal that contains an explicit E-Verify component. Many expect legislators to try to repeal the state law that allows illegal aliens to pay in-state college tuition rates. Also, possible is legislation requiring public benefit eligibility checks.
Mississippi: Last year, Democrats effectively subverted efforts to pass enforcement legislation modeled after Arizona's illegal presence law. Republicans gained total control of the legislature during the 2011 elections and have vowed to renew the effort. The state’s new governor, who campaigned in support of the measure, should weigh in as well.
Nebraska: The Chair of the legislature’s Judiciary Committee has not been supportive of enforcement legislation in the past, but that should not stop the re-introduction LB48, which would require police officers after a lawful stop to check the immigration status of a person suspected to be in the country illegally.
New York: Assembly and Senate members are expected to introduce legislation to give illegal aliens tuition assistance at public colleges (they already are allowed to pay in-state tuition rates), and allow them to use taxpayer identification numbers to open college savings accounts.
North Carolina: Legislators have already held hearings on the need for enforcement legislation. The co-chair of the state's Select Committee on the State's Role in Immigration Policy is said to be interested in an Alabama measure that prevents contracts with illegal aliens from being enforced.
Oklahoma: The state Senate effectively gutted a 2011 enforcement bill, so that measure may be revived. On the pro-illegal alien side, one legislator announced the introduction of a bill that would authorize the Oklahoma Department of Labor to issue “guest worker permits” to illegal aliens. This unconstitutional proposal is similar to Utah’s HB 116, which passed in 2011.
Virginia: The House in 2011 passed 10 enforcement bills that the Senate mostly blocked. The 2011 elections produced a tie in the Senate and since the Lt. Governor can break tie votes, some of the failed measures may stand a chance in 2012. Virginia has two limited E-Verify laws, so legislators may attempt to extend it to all employers.
Utah: After passage of HB 116, a law that sets up a “guest worker” program for illegal aliens in Utah, citizens urged the state Republican Party to adopt a resolution calling for its repeal. The campaign succeeded so a battle over repeal is expected this year. In addition, legislation may be introduced that would impose penalties on businesses that refuse to comply with the state's E-Verify mandate. Consistent with the Supreme Court ruling, the penalty under consideration is suspension or loss of a business license.
VAN ESSER is the Chief of Membership Services for NumbersUSA