(04-25) 17:12 PDT San Francisco -- The last time a state aimed its laws at illegal immigrants, it was rebuked by a federal judge.
"The state is powerless to enact its own scheme to regulate immigration," U.S. District Judge Mariana Pfaelzer said in a ruling striking down California's Proposition 187, a 1994 initiative that sought to deny health and welfare benefits and public schooling to the undocumented. Pfaelzer said California voters were understandably frustrated with ineffective federal enforcement of immigration laws. But no matter how serious the problem, she said, "the authority to regulate immigration belongs exclusively to the federal government."
It's a message that may soon be heard in Arizona, where another effort to use state laws to combat illegal immigration is headed for court.
Since Pfaelzer's 1995 decision, federal judges in Pennsylvania and Texas have issued similar rulings overturning local ordinances that prohibited illegal immigrants from renting homes or apartments.
No appeals court has yet reviewed the extent of a state or local government's power to adopt laws based on a resident's immigration status. But the district court rulings foreshadow legal difficulties for a new
Arizona law that is far broader than any measure the courts have yet considered. Signed Friday by Gov. Jan Brewer, and due to take effect in a little more than 90 days, the law makes it a crime for an immigrant to be in Arizona without proof of legal status, and requires police to try to determine the immigration status of anyone they reasonably suspect of being in the country illegally.
Like Prop. 187 - dubbed the "Save Our State" initiative by sponsors - Arizona's law is portrayed by its backers as a collective act of self-defense from the federal government's failure to control its borders. Polls indicate the measure is strongly supported by voters in a state whose border with Mexico is the site of more illegal crossings than any other in the nation. But the measure may be even harder to defend in court than Prop. 187.
Wilson's re-election bid
Then-Gov. Pete Wilson, who tied his successful 1994 re-election campaign to the immigration initiative, argued that the state was not trying to regulate immigration. It was, he said, merely seeking to preserve its benefits, like non-emergency health care and public education, for legal residents.
Pfaelzer disagreed, saying federal law exclusively regulates both immigration and immigrants' access to government services. An appeals court never considered the argument because Wilson's successor, Gray Davis, dropped the state's appeal and settled the case.
The issue may soon be addressed by two other appeals courts. One is now considering an attempt by Hazleton, Pa., to exclude illegal immigrants from rental housing, and another will review an appeal by Farmers Branch, Texas, which saw a similar ordinance struck down by a district judge.
Unlike those laws, the Arizona statute targets illegal immigrants themselves, not just their benefits. What's more, said UC Davis Law Professor Vikram Amar, it imposes criminal penalties for conduct - being in the state illegally - that is not a federal crime but is only grounds for deportation. "Congress decides how it wants to enforce limits on people who are in the U.S. illegally," Amar said Sunday.
Constitutional authority
He said the Constitution gives the federal government exclusive authority over immigration because it is a national policy that affects relations with other nations - such as Mexico, whose government has denounced the Arizona law.
Arizona will nonetheless argue, Amar predicted, that "these people who are illegally here are eating up jobs that our people need, consuming our services," and thus subject to state regulation.
Kris Kobach, a law professor at the University of Missouri-Kansas City and a legal adviser to the author of the Arizona law, told the Arizona Republic that the measure is in line with federal law because it penalizes conduct that Congress has deemed illegal.
"If the state is concurrently prohibiting the same behavior that the federal government is, then the state ... is acting consistently with Congress' objectives," Kobach said.
Civil rights groups are preparing suits designed to prevent the law from taking effect. Lucas Guttentag, chief immigration lawyer for the American Civil Liberties Union, which is coordinating the challenges, said Arizona's law is more at odds with federal immigration authority than Prop. 187 and similar measures.
"This isn't about employment or state benefits," he said. "This is regulating immigration, arresting and prosecuting people."
Mixed messages
Guttentag said the Obama administration has sent mixed messages. President Obama criticized the Arizona law last week, saying it threatens to "undermine basic notions of fairness that we cherish as Americans" and weaken "trust between police and their communities."
That criticism echoed comments by a number of police chiefs, including San Francisco's George Gascón, the former chief in Mesa, Ariz. He said the law could lead police officers to use race as a predictor of behavior and would "set back community policing efforts for decades" by discouraging victims and witnesses from coming forward for fear of arrest.
But Guttentag said the Obama administration has not responded to the U.S. Supreme Court's request for its view on how far a state can go in regulating the employment of illegal immigrants.
A separate Arizona law, and a similar law in Oklahoma, require employers to use federal databases to verify their employees' immigration status, and punish companies that knowingly employ illegal immigrants. A federal appeals court in San Francisco upheld the Arizona law; a court in Denver overturned the Oklahoma law; and the Obama administration has yet to take sides, Guttentag said.
"The failure of the Justice Department to step in aggressively and affirmatively in these previous cases," the ACLU lawyer said, "has caused a brushfire to become a firestorm."
