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PSN 2011 Immigration Roundup: AZ Copycat Bills Fail, Common-Sense Policies Advance, State Economies Hang in Balance

(Note: With legislative sessions largely adjourned in statehouses across the nation, this week’s Dispatch is the third in a series of issue-specific session roundups from Progressive States Network highlighting trends in different critical policy areas across the fifty states.)

As comprehensive immigration reform remained stalled in Washington, D.C. in the first half of 2011, common-sense state legislators across the nation took up the fight in their legislative sessions, defeating expensive and misguided enforcement bills that targeted undocumented immigrants and their families. Despite the deluge of SB 1070 copycat bills promised by anti-immigrant groups, attempts to mimic Arizona’s anti-immigrant law largely failed, as did a far-right effort to rewrite the U.S. Constitution by revoking citizenship for children born in the United States. Encouragingly, state legislative sessions saw a wide variety of innovative and common-sense proposals that sought to expand opportunity for all residents, both immigrant and native-born, through approaches emphasizing access to education, workforce development, and community policing.

The business community in several states stepped up their opposition to broad anti-immigrant proposals this session, citing the devastating impact of enforcement-only bills on their states’reputations, tourism industries, workforces, and agricultural sectors. One main galvanizing factor behind this increased activism from the business community has been the realization that it is extremely expensive to be anti-immigrant — and that an enforcement-only approach has been shown to wreak havoc on state economies and workforces. In fact, recent studies and news reports have estimated that at least 100,000 Latino families (many of which include U.S. citizen children and legal permanent residents in addition to undocumented workers) departed Arizona after the passage of SB 1070 in 2010 for more welcoming states such as New Mexico — which will likely benefit from increased sales and income tax receipts due to immigrant consumers’ purchasing power. According to economic projections, similar “attrition through enforcement” policies will only serve to further decimate the economies of the states that adopt them, depriving them of desperately-needed revenue in addition to a stable workforce.

From the widespread rejection of Arizona copycat bills and newer anti-immigrant attacks in the states to the growing momentum behind providing opportunity through tuition equity for students, ensuring safer communities through community policing, and withdrawal from the flawed federal E-Verify program, states made fateful choices on the future prosperity of their economies as they wrestled with immigration policy in 2011 sessions.

Promised Deluge of Arizona Copycat Bills Largely Defeated

Despite a predicted influx of state bills modeled upon SB 1070, Arizona’s 2010 “show me your papers” law, an overwhelming majority of state legislatures defeated or refused to advance similarly broad anti-immigrant bills during 2011 sessions.

Of the 22 states where such measures were introduced this year, 16 defeated their proposals outright (a few remain pending in committee in legislatures with year-round sessions, but are not expected to advance). Only 4 states of the 22 — Utah, Indiana, Alabama, and South Carolina — actually enacted SB 1070 copycat bills this session, and all immediately saw legal challenges. Preliminary court injunctions barred implementation of the laws passed in both Utah and Indiana, following the same path as Arizona, where an injunction continues to be in effect as the Obama Administration and U.S. Department of Justice lead the charge against SB 1070 in court. Lawsuits are currently pending in both Alabama and South Carolina.

Utah passed a trio of well-intentioned but misguided bills in the last few days of its legislative session, which included some troubling provisions such as a statewide guest worker program, and would also confer state residency on undocumented workers who meet a stringent set of criteria. Many of the provisions included in Utah’s trio of bills are either legally questionable, or would first need a federal waiver in order to be implemented.

While Arizona’s law continues to be the most renowned and maligned, Alabama’s recently passed bill is certainly the most expansive and troubling, with provisions that include immigration status checks on students enrolled in the state’s public schools. These basic rights are already enshrined in the U.S. Constitution and were upheld by the U.S. Supreme Court in a landmark 1983 decision, Plyer v. Doe, which affirmed the rights of all children, including undocumented students, to a public school education. (Alabama’s law, which is scheduled to go into effect on September 1st, will be challenged in court by a broad spectrum of legal groups including the ACLU, the National Immigration Law Center, the Southern Poverty Law Center, and the Mexican American Legal Defense Fund on August 24th.)  

Legislative sessions this year also saw the overwhelming defeat of attacks against the 14th amendment and U.S. citizenship. These legally questionable proposals, advanced by an American Legislative Exchange Council (ALEC)-affiliated group called State Legislators for Legal Immigration (SLLI) were introduced in roughly 16 states and were not enacted in any state, with Arizona coming closest to passing a law. They sought to bar the U.S.-born children of undocumented immigrants from obtaining U.S. citizenship and to rewrite a part of the Constitution that first gave citizenship to African American slaves and their children after the Civil War.

State Compacts: Advancing Common-Sense Conversations

One popular effort pursued by many states to convene common-sense, solutions-based conversations on immigration policy were the development of state compacts. Compacts essentially aim to develop a set of principles on immigration policy and define what makes sense for a specific state, and in doing so bring together members of the business, faith, and law enforcement sectors along with members of state government and community leaders.  

Utah was the first to develop such a state compact on immigration, which included a progressive set of principles that: emphasized that immigration policy remained squarely under the purview of the federal government; underlined that law enforcement should focus on enforcing the state’s laws and not serve as de factoimmigration agents; emphasized the need to keep families together, including immigrant families; acknowledged the critical role immigrant workers play in the state’s economy; and emphasized the need to integrate and welcome immigrants in society.  

Unfortunately, despite the progressive and forward-looking principles articulated in the Utah Compact, these principles were transformed into a trio of misguided bills that largely focused on immigration enforcement and bestowed the doubtful distinction on the state of being the nation’s first SB 1070 copycat law. Still, several other states (see map below) continue to consider their own compacts, largely as key organizing tools to bring together a set of key and diverse constituencies critical to advancing state conversations on immigration.

Map: States Considering Establishing Compacts

States Take up the DREAM: Tuition Equity Advances

With immigration reform stalled in Congress, states played an increasingly prominent role in the national policy debate in 2011. One proposal that saw significant action this year has been tuition equity — legislation that allows qualifying undocumented students to attend public colleges and universities at in-state tuition rates. In a reflection of widespread voter support for the federal DREAM Act, which Congress again failed to pass last winter, state proposals to ensure tuition equity for all in-state students gained significant momentum this session. Tuition equity bills were introduced in 10 states, and were signed into law in Connecticut and Maryland while passing one chamber in Colorado and Oregon. In addition, California passed a bill that builds upon and further expands financial access to higher education for undocumented students by allowing them to receive privately-funded scholarships. (Unfortunately, Maryland’s bill will be challenged in a ballot initiative the fall of 2012 after anti-immigrant activists obtained enough signatures to put the issue before the state’s voters.)

These efforts to expand educational access and affordability are often critical to immigrant working families because out-of-state tuition costs are significantly higher — up to 450% more than in-state tuition rates — and usually apply to undocumented students as well as others who have not lived in-state long enough to qualify. Broad support from the business community was critical to advancing state tuition equity proposals. In both Colorado and Oregon, coalitions of executives from high-tech companies stressed their current and growing need for college-educated workers, and emphasized that tuition equity proposals would help them meet their future workforce development needs.

According to the Bureau of Labor Statistics, two-thirds of the occupations that are expected to grow the most rapidly by 2018 will require a college degree or some form of post-secondary education. Tuition equity proposals allow state education systems to prepare students to meet this need by getting an affordable college education. State tuition equity laws are not new ideas, and have been tried and tested in state legislatures as well as affirmed in the courts. California was the first to pass its tuition equity law in 2001, which was unanimously upheld by the California Supreme Court in November 2010. This spring, the US Supreme Court declined to hear, without comment, yet another challenge to California’s tuition equity laws brought by anti-immigrant legislators and activists.

Colorado’s ASSET bill (“Advancing Students for a Stronger Economy Tomorrow”) was passed by the Senate this session but failed to receive enough support in the House, where it lost a vote along partisan lines. In addition to receiving support from business groups, the bill received strong support from immigrant and education advocates and is well-positioned for a strong push next session. Despite not being enacted this year, Oregon’s effort was notable for the fact that the primary co-sponsors included a bipartisan group of legislators.

As the DREAM Act’s ultimate fate remained uncertain, state tuition equity laws continued to gain momentum late in sessions this year — just last month, a bill was introduced in Pennsylvania. In total, 13 states have passed laws granting greater educational access and opportunity to talented and aspiring undocumented students.

Community Policing: Partnering with Law Enforcement for Safer Communities

The introduction of community policing legislation in many states in 2011 reflected a growing trend of state lawmakers and law enforcement officials alike questioning the value and impact of immigration enforcement proposals. This year, strong and promising models to strengthen the security of communities emerged in California (AB 1081) and Illinois (HB 929). In addition, anti-racial profiling legislation was introduced in Rhode Island and other states that added immigration status to the list of characteristics included in racial profiling by law enforcement.

Map: State Community Policing Bills

In California, the TRUST Act (“Transparency and Responsibility Using State Tools”) aims to chart a more sensible course on immigration enforcement while strengthening local community policing efforts that have proven to be successful. The bill passed the Assembly earlier this year, and has cleared initial hurdles in the upper chamber. Most notably, it would allow local governments to decide whether to opt in to participate in the federal “Secure Communities” enforcement initiative, or to tailor their participation to meet local needs. It would also prevent racial profiling, protect children and victims of domestic violence from being deported, and ensure access to due process and representation for individuals who are accused but never convicted of a crime.

Illinois’ Smart Enforcement Act, which passed the state’s House in May, also allows local sheriffs and law enforcement more discretion to opt out of participation in the Secure Communities program, while requiring the program to focus on apprehending violent criminals. It would also mandate data collection on all immigrants and other individuals picked up through the program.  

Finally, Rhode Island introduced an innovative bill aimed at discouraging racial profiling and traffic stops by law enforcement based on perceived immigration status. Their proposal requires police to document the “reasonable suspicion” behind a decision to conduct a traffic stop, bars law enforcement from using a traffic stop as a pretext to inquire about individuals’ immigration status, and limits the ability of police to question passengers in a vehicle when there are no grounds to suspect illegal activity.  

As efforts to strengthen community policing efforts gained traction in many states thanks to support from law enforcement, the Secure Communities program has come under immense pressure for negatively impacting community policing efforts. State and local elected leaders from around the country have voiced opposition to the controversial initiative responsible for annually deporting over 400,000 non-criminal undocumented immigrants, costing states millions in the process.

Map: States Opting Out Of Secure Communities

A growing understanding emerged of the high cost of flawed immigration enforcement initiatives to communities and to state budgets alike as the governors of Illinois, New York, and Massachusetts all withdrew their states’ participation in Secure Communities this year, and as governors in other states (including Colorado) considered doing the same. This growing number of governors leading the push to opt out of the program came amid widespread and growing alarm about its fundamental inaccuracy and impact, splitting families and deporting record numbers of people — a total of nearly 1 million over the past two years, roughly 450,000 annually under the Obama administration.

Lawmakers Fight Flawed, Costly E-Verify Programs

Unfortunately, state legislatures saw a growing number of state “E-Verify” proposals even as yet another flawed federal bill was introduced in Congress this summer. Despite being intended to flag undocumented workers, the E-Verify system actually fails to identify over half of all ineligible applicants run through the system. In addition, studies have shown that requiring employers to use E-Verify is extremely costly to local businesses and state economies.

States and state legislators are fighting back hard against mandatory E-Verify, citing its negative impact on states’ economies, its crippling effect on small businesses, and its ultimate impact as a job killer at a time when states continue to grapple with large budget deficits. State Senator Luz Robles (D-Utah) critiqued a bill which required businesses to use E-Verify in her state by warning its supporters they would “be creating a mess and a more complicated system for small businesses,” and that it would “not solve the problem of illegal immigration.”

Still, eight states passed some form of mandatory E-Verify legislation this session: Alabama, Florida, Georgia, Indiana, Louisiana, North Carolina, South Carolina, and Virginia. (States such as North Carolina and Alabama expanded mandatory use of E-Verify to all employers, and South Carolina and Alabama included E-Verify portions in their broad SB 1070 copycat proposals.)

Map: E-Verify State Laws

These state and federal bills came as the U.S. Supreme Court issued a disappointing decision upholding Arizona’s employer sanctions law, originally passed in 2007. In a May 2011 decision in Chamber of Commerce v. Whiting, the court upheld Arizona’s law that strips state licenses away from businesses that knowingly hire undocumented workers and requires all employers to use E-Verify. However, the decision did not address other egregious and intrusive state immigration laws such as Arizona’s SB 1070.

The Outlook for 2012 and Beyond

With state-level attacks on workers sweeping the nation as a central priority of the right wing, fewer states than expected passed wage enforcement legislation in 2011 ― proposals that seek to enforce wage and hour laws, enhance workplace protections, and crack down on employers seeking to duck paying payroll taxes by misclassifying full-time workers as independent contractors. However, some progress was made. Thirteen states introduced wage enforcement proposals in 2011, and both Iowa and California passed wage enforcement bills in one chamber. Iowa’s proposal focused on wage theft; California’s would have increased the State Department of Labor’s ability to crack down on employers who defraud workers. It is likely wage enforcement proposals will continue to be introduced in 2012.

More broadly, states will continue to grapple with immigration in 2012 sessions, particularly given the dim prospects for large-scale comprehensive immigration in Congress in a major Presidential election year.  In the meantime, many progressive and forward-looking states and legislators are already preparing to introduce and re-introduce proposals that focus on real solutions and that expand opportunity for all residents, both immigrant and native-born.

This article is part of PSN's email newsletter, The Stateside Dispatch.
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