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Can States Regulate Immigration? Part 3:
Reporting errors in today's Washington Post page one story

15 Oct 2007 in Regulatory Policy

Washington Post staff writer Anthony Fiaola has a Page One commentary on actions State and local governments have taken or are considering to regulate immigration within their borders. Fiaola's article contains mostly unattributed opinions (e.g., "some see obstacles"; "some observers fear"; "some observers are alarmed"; "others argue"; "others assert") and few facts or analysis. Because he is the Post's New York City bureau chief and not a beat reporter on immigration issues, he is especially prone to reporting error. We correct his more obvious mistakes.

Fiaola discusses actions taken in New York, Illinois, Oklahoma, and Tennessee. The article is preceded by a header that reads "The Immigration Debate: Full Coverage," but links in the article lead readers to generic (and unhelpful) searches within the Washington Post, not to the specific State actions being cited or discussed.

New York

Fiaola reports that New York will now issue driver licenses to illegal immigrants. More details are provided in a recent New York Times article by Nina Bernstein, who notes that this action is unusual:

The move goes against the national trend. Many states, prodded by demands to crack down on identity fraud, have added requirements that effectively prevent illegal immigrants from obtaining driver's licenses.

All but eight states now require drivers to prove legal status to obtain driver's licenses, and those eight -- Hawaii, Maine, Maryland, Michigan, New Mexico, Oregon, Utah and Washington -- have come under pressure to add such a requirement.

New York Daily News columnist and CUNY law professor Allan Wernick says the change is much smaller than it appears:

The main change from current policy is that applicants without a Social Security card will be able to get a license by presenting a valid passport. The DMV says it will use new scanning technology to verify the passport's validity.

Few illegal immigrants have valid passports, so under Wernick's interpretation New York State's regulatory change is minor. The information posted by the New York State Department of Motor Vehicles appears to confirm Wernick's view. The change applies only to persons who (a) have an expired New York State driver license and either (b) were not able to renew the driver license because the driver did not have either a valid Social Security Number (SSN) or a letter of SSN ineligibility; or (c) have a current New York State driver license but not either a valid SSN or a letter of SSN ineligibility.

In any case, the support for the change voiced by the illegal immigrant quoted by Bernstein appears to be the result of misinformation. It is highly unlikely that "Cesar" would qualify.

Illinois

Fiaola writes: "In Illinois, the state legislature just passed a law forbidding businesses there from using a federal database to check the legal status of employees" and notes that the U.S. Government is suing to overturn it.

The lawsuit filed by the U.S. Government against Illinois alleges that H.B.1744, signed into law by Governor Blagojevich on August 13, 2007, conflicts with and is preempted by federal law. Section 12(a) prohibits Illinois' employers from enrolling in the federal government's Employment Eligibility Verification System "until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law." The law imposes an array of additional duties that employers must follow, the violation of which would expose them to various legal sanctions.

The U.S. Government alleges that H.B. 1744 is preempted by federal law and "presents an obstacle to accomplishment and execution of the full purposes and objectives of federal law," and seeks a permanent injunction declaring it invalid, null, and void. It alleges that Illinois is trying to regulate the federal government by imposing state standards on the operation of a federal program and that it lacks the Constitutional authority to do so.

The case is now before the U.S. District Court for the Central District of Illinois, and likely will be resolved soon because H.B. 1744 takes effect on January 1, 2008.

Oklahoma

We have previously posted on the Oklahoma statute that Fiaola cites:

Oklahoma, meanwhile, recently passed some of the toughest immigration laws in the nation, including one making it a felony to "transport" or "harbor" an illegal immigrant -- leading some to fear that people such as school bus drivers and church pastors may be at risk of doing time.

The relevant text of the law (Section 3) reads as follows:

A. It shall be unlawful for any person to transport, move, or attempt to transport in the State of Oklahoma any alien knowing or in reckless disregard of the fact that the alien has come to, entered, or
remained in the United States in violation of law, in furtherance of the illegal presence of the alien in the United States.

B. It shall be unlawful for any person to conceal, harbor, or shelter from detection any alien in any place within the State of Oklahoma, including any building or means of transportation, knowing
or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law.

C. Nothing in this section shall be construed so as to prohibit or restrict the provision of any state or local public benefit described in 8 U.S.C., Section 1621(b), or regulated public health services provided by a private charity using private funds.

Fiaola implies that these provisions are a significant change in applicable law. However, he fails to report that virtually identical language can be found in existing federal immigration law (8 U.S.C. § 1324(a)(1)(A)):

(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;

(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;...

Fiaola treats as newsworthy the fact that these State violations are felonies punishable by up to a year in State prison. However, he does not report that violations of existing federal law are federal felonies punishable up to one year in federal prison (8 U.S.C. § 1324(a)(2), and up to 10 years under certain circumstances (8 U.S.C. § 1324(a)(1)(B)(i)-(ii)).

Thus, the practical effect of Oklahoma's SB 1804 is to make certain violations of federal law also violations of Oklahoma law. Federal law prohibits the States from enforcing federal immigration law:

No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws (8 U.S.C. § 1324(c)).

By making Oklahoma law parallel to federal law, the State is no longer dependent on the federal government for enforcement. Whether, as Fiaola asserts, school bus drivers and church pastors face a genuine legal risk thus depends on whether they have been at risk under federal law since 1986.

Fiaola draws attention to the effect of the Oklahoma law on construction, quoting at length a representative of the Oklahoma State Home Builders Association.

"In major metro areas we are seeing people leave based on the perception that things are going to get bad for them and that this state doesn't want them here," said Mike Means, executive vice president of the association. "Now we're looking at a labor shortage. I've got builders who are being forced to slow down jobs because they don't have the crews. And it's not like these people are going back to Mexico. They're going to Texas, New Mexico, Kansas, Arkansas, anywhere where the laws aren't against them."

If Means' description of the law's effect in Oklahoma is correct, then his members may have been committing felonies under federal law:

Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under title 18 or imprisoned for not more than 5 years, or both (8 U.S.C. 1324(a)(3)).

Tennessee

Fiaola writes that "Tennessee's legislature this year revoked laws granting illegal immigrants 'driving certificates' and voted to allow law enforcement officers to effectively act as a state immigration police." We deal with "driving certificates first, then discuss immigration enforcement.


In 2004, Tennessee changed its rules to prohibit the issuance of driver licenses to those without U.S. citizenship or lawful permanent residency.

Beginning July 1, 2004 individuals not eligible for a Tennessee driver license may apply for a Certificate for Driving. Individuals eligible for a Certificate for Driving include:

• Persons who have temporary, legal documents from the U.S. government (work visas, educational visas, etc.)
• Persons who do not meet the eligibility requirements for a Tennessee driver license, but can provide proof of identity and residence in Tennessee.

Proof of identity did not require U.S. citizenship. A variety of forms of identification were accepted, but the Matricula Consular issued by Mexico was not. Thus, illegal aliens can obtain Certificates for Driving as long as they can prove who they are. The State publishes these requirements in both English and Spanish.

The National Immigration Law Center opposes all restrictions on the issuance of driver licenses to illegal aliens, and has been specifically exercised by the Tennessee Certificate for Driving.The key issue with the certificate is that it is not a legal form of identification for any other purpose besides operating a motor vehicle.

It is not clear why the same documents that prove identity in order to obtain a Certificate were insufficient for other purposes, and it also appears that the Tennessee's program was popular among illegal aliens that it led to fraudulent verification of identity. In 2006 Knoxville News-Sentinel reporter Jamie Satterfield described one such scam:

The shuttling operations worked this way: People like Rivera and Galvan charged a fee - ranging from $750 to $950 - to illegal immigrants to bring them to East Tennessee, provide them fake addresses and other documents and take them to driver's license testing centers to be tested.

Tennessee was one of only two states in the nation that issued driver's certificates without requiring proof of U.S. citizenship.

Under the state's certificate program, currently suspended, a recipient needed only to show some proof of residency in East Tennessee within the past six months. Utah has the only other program.

The market-clearing price alone is sufficient evidence that a Certificate for Driving was a very valuable asset.

In 2007, Tennessee enacted new law (SB767) increasing the penalties for fraud in the Certificate program. However, contrary to Fiaola's reporting, the State did not rescind the program. It remains intact at Tennessee Code Annotated 55-50-102(6).

Regarding Fiaola's claim that Tennessee "voted to allow law enforcement officers to effectively act as a state immigration police," the text of the bill enacted conveys a considerably different message. SB 1604 authorizes the State to enter into a memorandum of understanding with U.S. Department of Homeland Security that would enable at least one employee at each Tennessee Highway Patrol district office to be trained by DHS to enforce federal law "while performing within the scope of their authorized duties as state highway patrol officers." If DHS does not want help from the Tennessee Highway Patrol, it will decline to enter into any such agreement.

Summary

State actions related to immigration vary. Changes taken by New York and Tennessee appear to be minor. Fiaola misreports what has happened in Tennessee and misrepresents the content of the Oklahoma's statute. Of the examples he cites, only the legislative action taken in Illinois qualifies as a significant change from the status quo. Its significance is obvious given the federal government's quick and uncompromising legal challenge on grounds of federal preemption.

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Reporting errors in today's Washington Post page one story

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