States lead on immigration, sort of

While Congress stalls over immigration reform, some states are making their own moves. That’s especially interesting because one more typically associates “states’ rights” with anti-progress laws, especially regarding individual rights. The worst of these, in recent memory, is Arizona’s SB 1070, which required law enforcement officers to stop anyone they suspected of being an illegal immigrant and to demand to see their identification. But Arizona’s xenophobic, backward move may turn out to be, in the longer run, a good thing: not for immigrants, and not for Arizona’s image and economy, of course, but as a poster-child for bad legislation from which other states can recoil.

Opting out. Is that a good thing?

Some recent immigration moves by states are less about drafting their own immigration laws and more about opting out of a federal program called Secure Communities, which is designed to detain and deport illegal immigrants convicted of violent crimes. According to the New York Times:

Under the program, the fingerprints of every person booked by the police are checked against Department of Homeland Security databases for immigration violations. That is in addition to routine checks against the F.B.I.’s criminal databases.”  State officials and federal lawmakers have questioned the program, saying that Homeland Security officials conveyed misleading information about whether participation was mandatory or whether states could opt out.

Secretary of Homeland Security, Janet Napolitano, has said that the program is, indeed, mandatory. It’s currently operating in 1,200 communities and is scheduled to go in force everywhere in 2013. The program has been a centerpiece of the Obama administration’s immigration enforcement policy. An estimated 800,000 deportations have taken place since the program started in Texas in 2008. But Secure Communities has encountered criticisms from both left and right: Progressives view the program as unnecessarily punitive. Members of the Latino community regularly object to its provisions. At the same time, conservative Republicans complain that it’s not tough enough.

At the state level, some leaders complain that Secure Communities doesn’t deport convicted criminals as advertised and that, under its rules, a disturbing number of documented immigrants with no crime history have been swept up and deported. So, they’re opting out or creating alternate rules for their state’s law enforcement agencies.

Examples: Illinois Governor Pat Quinn recently announced that he was pulling his state out of the controversial Secure Communities program. In New York, 38 legislators sent a letter to Governor Andrew Cuomo urging him to withdraw from the program, calling it “destructive.” In California, where Secure Communities operates in all communities, the legislature is considering a bill that would allow counties or local law enforcement agencies to decide for themselves whether to participate.

But is opting out a good thing? Is it legal? That question is already being tested by states whose legislatures want to opt out of the Affordable Care Act—healthcare reform. If states can unilaterally decide that federal laws don’t apply to them, the existence of a federal system is in serious jeopardy. Of course, the motivations behind nullifying the federal healthcare reform act are [in this writer’s opinion] not about objecting to an immoral or unconscionable law: They are about defeating anything proposed by President Obama. The potential breakup of the federal system is merely collateral damage. [Or is it? See: Tenthers, Texas threatens to secede, etc.] Is the same anti-Obama motivation at play in the objections to Secure Communities, or is there demonstrable evidence that the program is ineffective at best, or at worst, unfair and unjust? And even if it is, can a state refuse to enforce a federal law that it disagrees with? Former Alabama Governor George Wallace tried that when the federal government ordered the racial integration of the University of Alabama. It took the National Guard to force him to comply. And that was ugly.

Steps in a better direction

On a more positive note, an article on Progressive States Network (PSN)  rounds up recent state-led  immigration developments that offer hope for more fair and humane treatment for immigrants:

For example, Maryland Governor O’Malley signed legislation granting in-state tuition to qualifying undocumented students at the state’s four year institutions. In doing so, Maryland becomes the 11th state to offer increased educational access and opportunity to talented and motivated immigrant students, says PSN. In addition,

it was also another bad week for Arizona-style copycat measures. Both of Florida’s immigration enforcement bills died as their session came to a close.. In Maine, a copycat version of Arizona’s law was withdrawn by its sponsor, a clear sign that lawmakers are starting to consider the consequences of pursuing similar anti-immigrant bills that are nothing more than desperate stabs at political opportunism.

Finally, in Utah a federal judge blocked implementation of the state’s recently passed immigration enforcement bill on Tuesday, just fourteen hours after the law took effect. The ruling, following a lawsuit filed by the American Civil Liberties Union and the National Immigration Law Center, deals yet another blow to questions regarding the constitutionality of immigration bills modeled after Arizona’s controversial SB 1070.