Paul Nitze: Utah’s immigration gamble |

Paul Nitze: Utah’s immigration gamble

Paul Nitze
The Aspen Times
Aspen, CO Colorado

For a change, it has been a great week for the president. And for the country, the Donald excepted. I hope for the sake of his sanity the president has found time for a couple of pick-up games, so much as you can play pick-up at the White House, and a quiet dinner with his wife and a few friends. Big wins should be savored with those you love.

That’s how I hope Barack Obama spent his Monday. By Tuesday, the drumbeat of domestic politics was back at its usual volume. Members of the Congressional Hispanic Caucus came to the White House to push for comprehensive immigration reform and strategize on how to get a bill through a reluctant Congress. The same day, the National Immigration Law Center (NILC) and the American Civil Liberties Union (ACLU) filed suit to invalidate one of Utah’s new immigration laws.

Like Colorado and rest of the West, Utah has been in the thick of the post-Arizona policy debate. Unlike Colorado, where Republicans and Democrats have killed each other’s bills this session, the Utah legislature managed to pass a troika of bills that gave something to various constituencies. You can smirk and say that’s easy when one party and one church control all branches of state government, but that diminishes Utah’s achievement.

The bill that’s in the NILC’s crosshairs is the one that requires law enforcement to check the immigration status of anyone arrested for a Class A misdemeanor or any felony. A “watered down” version of Arizona’s S.B. 1206 is what many are calling it, but that’s wrong. S.B. 1206 crossed the moral rubicon because it made alienage a (state) crime, and gave the police license to stop people they suspected of nothing more than being here illegally.

So far as I can tell, the Utah immigration enforcement bill doesn’t direct local law enforcement to do much they’re not already doing. Utah signed up for the Department of Homeland Security’s Secure Communities program last spring. That already provides for ICE to run a check on anyone booked into a county jail post-arrest. As a matter of practice, and sometimes law, most local police departments arrest and book everyone charged with a felony. Though they might be released on a PR bond or a summons later, they would still be run by ICE under current protocol.

The text of the bill refers to “detention” as well as “arrest,” which could mean that a few people who would otherwise be issued a misdemeanor summons at the scene would be run through the ICE database and arrested. But Utah took profiling off the table by requiring that there be an arrest or detention for a serious crime. Minor and major traffic offenses, including drunken driving, were left out of the bill.

In sum, the bill reads more as a sop to the “deport ’em all” crazies than a crackdown. And the context here is important – this was only one of the three bills signed by Gov. Gary Herbert. A second creates a guest worker program with the Mexican state of Nuevo Leon, the first state program of the sort in the country. A third sets up a permit system that would allow illegal aliens already in Utah to work legally after jumping through a variety of hoops.

Most narratives of the backroom dealing it took to put the package together emphasize that it wasn’t the enforcement bill that was driving the process. Rather, it was the “legalization” or “amnesty” bills, and anti-immigrant groups are calling them far worse, that were in front, and the enforcement bill was used solely to provide cover to conservative lawmakers who needed to give something to their constituents. And all of the bills are piecemeal in their approach.

Groups opposed to any of these bills have a legal bazooka in their arsenal, namely the federal government’s right to preempt the states when it comes to immigration policy. Preemption was at the heart of Judge Susan Bolton’s decision to strike down portions of the Arizona law last summer, and its at the heart of ACLU and NILC’s suit in this case. There’s a rich irony in this of course – how can the federal government preempt the states when the federal government fails to act?

Tellingly, the Utah suit limits its challenge to the enforcement bill and leaves the other two bills alone. The ACLU and NILC have said they would have challenged the other two bills but for technical reasons, yet it seems they like state-level experimentation on immigration policy when it serves their ends. Only they are blind to the political reality that they couldn’t have gotten one without the other.

Utah’s legislation was drafted by a group called the Utah Compact. Courageously for a group operating in conservative political terrain, their guiding declaration states as follows: “The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.”

In our current era of do-nothing Congresses, states are the best political incubators we’ve got. So long as the feds fail to pass a bill, states should be allowed to develop their own solutions. Some of those bills will be out of step with our better angels, but that will only turn up the heat on Congress. And the most promising state efforts can be models for national reform.

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