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Could State Immigration Laws Spur Washington Action?

It may take years to sort out the constitutionality of the Arizona law that, among other provisions, would have required police to check an individual’s immigration status while enforcing other laws and during routine stops. But last week’s ruling by the 9th Circuit U.S. Court of Appeals continues to block the most controversial provisions from taking effect.

The Arizona law, passed nearly one year ago, was initially stayed in July of 2010 by U.S. District Judge Susan R. Bolton. The intent of the law was to “make attrition through enforcement the public policy of all state and local government agencies in Arizona.”

The appeals court ruling should give some pause to states and municipalities around the country currently considering similar legislation.  Arizona Gov. Jan Brewer has vowed to take the issue to the Supreme Court if necessary. 

The issue at stake is whether Arizona "interferes with the federal government's authority to implement its priorities and strategies in law enforcement," as the majority opinion written by Judge Richard Paez puts it, by requiring police to check immigration status.

Other states have passed laws designed to control immigration but take a decidedly different path. On March 15, Utah Governor Gary Herbert signed into law four bills designed to control immigration into that state, perhaps also usurping federal authority. 

In addition to a state level enforcement provision to check the immigration status of those arrested for felonies and serious misdemeanors, three other measures open pathways for immigrants to live and work in Utah. One allows undocumented immigrants already living in Utah who can verify their employment, to pay a fine, get a background check, and receive an ID card allowing them to live in the state as long as they are employed. Another establishes an agreement with a state in Mexico (Nuevo Leon) for Utah businesses to bring temporary migrant workers using existing federal work visas. And a third allows Utahans to sponsor immigrants who want to live, work, or study in Utah after they pass a background/health check, pay a fee, and pay taxes.

Though wildly contrasting, these two states have passed laws that ultimately may be found unconstitutional. However, both may serve to loosen the gridlock in Congress if the federal government ever wants to regain control of immigration policy.

  • Audrey Singer is a senior fellow at the Brookings Metropolitan Policy Program. Her areas of expertise include demography, international migration, U.S. immigration policy, and urban and metropolitan change. She has written extensively on U.S. immigration trends, including immigrant integration, undocumented migration, naturalization and citizenship, and the changing racial and ethnic composition of the United States.

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