Is HB116 constitutional?
No. Both naturalization and migration are specifically enumerated in the Constitution as being the responsibility of the federal government. These are not constitutional rights reserved to the individual states. Further, the Utah Office of Legislative Research and General Counsel (the legislature’s lawyers) included a review note on HB116 on 2/18/11 advising the legislature that:
“The Constitution of the United States grants authority to the federal government to regulate foreign commerce and to adopt a uniform rule of naturalization. The United States Supreme Court has also found inherent federal authority to regulate immigration on the basis of federal sovereignty and the power to engage in foreign affairs, this is sometimes referred to as the ‘plenary power,’ which in more recent years has been made subject to certain constitutional limits.”
and more specifically:
“In the absence of an effective waiver recognized as valid by the courts, under current law, there is a high probability that a court would find that portions of this bill unconstitutional because they are preempted by federal law as applied through the Supremacy Clause of the Constitution of the United States.”
Additionally, the Chair of the United States House of Representatives Judiciary Committee has asked the federal government to sue Utah over the constitutionality of this bill, which will cost Utah taxpayers millions of dollars legal expenses. (see “Smith to DOJ: Utah Immigration Law is Unconstitutional” – http://judiciary.house.gov/news/Utah%20Letter.html)
Does it give legal status to illegal immigrants?
Yes. HB116 ignores existing federal guest-worker visas and implements a state-run work program for those who are here illegally. The bill redefines their status as legal within Utah (line 1555). Defining immigration status is a federal responsibility according to the Constitution. While this bill redefines a person’s legal status within the state, the federal government will not recognize this status, leaving both the workers and employers participating in this program subject to the penalties of breaking federal immigration law.
Is it amnesty?
Yes. Amnesty is giving someone the very thing they broke the law to obtain. That is precisely what HB116 does. This bill has been rightly dubbed “Utah’s amnesty bill”, and states around the nation are understandably shocked that conservative Utah would pass liberal amnesty legislation.
Does it violate the Republican Platform?
Absolutely. Utah’s amnesty bill clearly violates the Utah County, Utah state, and national Republican Party Immigration Platform Planks; just a few of Platform principles violated include:
• We oppose illegal immigration and all forms of amnesty, or legal status, for illegal immigrants ;
• Control of our borders is an urgent national security interest and our national sovereignty depends on those secure borders ;
• We support efforts to enforce the law while welcoming immigrants who enter America through legal avenues;
• Taxpayers should not be covering state benefits for illegal aliens;
• Enforcement of the law against those who overstay their visas ;
• Real consequences, including denial of federal funds, for self-described sanctuary cities, which stand in open defiance of federal and state statutes that prohibit sanctuary policies ;
• Opposition to government policies that encourage or reward illegal activity.
Does this bill violate federal law?
Yes. Because the worker program is in violation of federal law, this bill requires the governor to seek a waiver from federal law (line 651). There is currently no mechanism for granting waivers from following the law.
Does it make Utah a magnet for illegal immigration and a sanctuary state?
Yes. This bill provides that any illegal immigrant who has ever lived or worked in Utah, or who can violate our sovereign US borders and get to Utah by May 10, 2011, can apply for the work program (line 746). Not only is this an enticement to enter the US illegally, it entices illegal immigrants who have left Utah for other states to return to Utah in order to participate in this program. That means our doors are currently open wide. Additionally, there is no limit to the number of work permits than can be issued, the number of times they can be renewed, nor any limit to the job sectors eligible for the work program — this will hurt the 100,000 Utah citizens who are currently searching for work in an already depressed economy.
As long as there’s no waiver, there’s no problem, right?
Wrong. This bill goes into effect on July 1, 2013, with or without a waiver (line 672). That means there is a 2-year gap between the date by which illegal immigrants must arrive in Utah (May 10, 2011) and when the program starts. Utah taxpayers will be paying for the education, medical expenses and public safety expenses of this influx of illegal immigrants for the next two years.
Is HB116 a solution?
No. HB116 was never meant to be a solution. Legislators publicly call HB116 “a resolution on steroids” and an attempt to “get the government’s attention”. It is a message bill — but is an unconstitutional amnesty bill the message Utah wants to send? Because it makes Utah a magnet for illegal immigration, this bill actually makes our immigration problems worse.
Is the bill full of holes?
Yes. Because this is a message bill, and because the final version was rushed through the legislature, there are many flawed provisions in this bill that need to be fixed. For example, an illegal immigrant participating in the program must have health insurance, OR just say they won’t incur any health debt (line 758) – how nice would it be to just tell your insurance company that you don’t need their services because you’ll never get sick or never get in a car accident? And when those things happen to uninsured illegal immigrants, we end up paying for it through taxes and our own skyrocketing health insurance premiums. Another strange provision is that the illegal immigrant have a Driver Privilege Card (a provision that is specifically against the Republican Platform, by the way), OR they just have to say they won’t drive (line 762).
Does the bill improve safety and security in Utah?
No. The background check required for the primary permit applicant does not check crimes committed outside of the USA, leaving the permit process open to violent criminals and even terrorist (line 783). There is no background check required for anyone covered by the family permit (line 796).
What is the official statement by The Church of Jesus Christ of latter-day Saints on HB 116?
I apologize for including this question, and I only include it because it was thrown delegates in an email sent by a registered lobbyist. I am frankly disappointed and saddened that some would use a person’s faith to influence them in the political arena. I will simply reply to this issue by noting that the LDS Church’s official statement (http://newsroom.lds.org/article/immigration-response) includes support for keeping the family intact, opposition to granting amnesty, and support for border enforcement. Our platform and this resolution are in agreement with these principles. We want families to stay together, and the best way to do that is to encourage legal immigration so that families can enjoy the full benefits of citizenship.
Why should I defend the Platform?
As Republican delegates, we have the right and responsibility to defend our Party Platform, which contains the principles and values that define our Party. The Platform was written and ratified by us, and it defines and unifies us as a Party. Our platform is like a contract with our voters – it tells them ‘if you elect Republicans, these will be our guiding principles.’ If we do not abide by it and defend it, we will lose our support, identity and purpose, and our Party will become irrelevant.
Why should I support the resolution to repeal HB116?
When badly flawed bills are passed, delegates and voters have the right and responsibility to call on the legislature to correct these bills. The resolution “Repeal 116: A Resolution in Support of National, State and County Republican Party Immigration Platforms” simply asks the legislature to put this bill back on the table, fix its flaws, and make it viable and constitutional.
I ask delegates to join me in defending the Republican Party Platform, the rule of law and the Constitution of the United States. Please vote to adopt the resolution entitled “Repeal 116: A Resolution in Support of National, State and County Republican Party Immigration Platforms”.
Link to HB116:
Provisions of HB116
1) Constitutionality: Implementing a state-run “guest worker” program violates the naturalization and migration clauses which are specifically enumerated in the Constitution as being the responsibility of the federal government. The Office of Legislative Research and General Counsel’s review note on the bill (2/18/11) states, “The Constitution of the United States grants authority to the federal government to regulate foreign commerce and to adopt a uniform rule of naturalization. The United States Supreme Court has also found inherent federal authority to regulate immigration on the basis of federal sovereignty and the power to engage in foreign affairs, this is sometimes referred to as the ‘plenary power,’ which in more recent years has been made subject to certain constitutional limits,” And adds “…there is a high probability that a court would find that portions of this bill unconstitutional…” (Utah taxpayers will pay for the court challenge).
2) Grants Utah legal status to illegal immigrants participating in the program (line 1555) (but workers and employers are still subject to penalties of breaking federal law).
3) Program participants must be living or working in Utah by May 10, 2011, encouraging illegal immigrants to violate our US borders or return to Utah from other states by the deadline date (line 746).
4) Program violates federal law, prompting state to requests a waiver from law (line 651).
5) Law goes into effect July 1, 2013, whether or not we obtain a waiver. (line 672)
6) No limit to number of “guest worker” permits.
7) 2-year delay between “arrive by” and “program start” date means for two years Utah taxpayers will pay for education, health care and law enforcement for those waiting for the July 1, 2013 program start date. (line 746, 672)
8) Requires health insurance OR participant can simply say they won’t incur any health debt (line 758).
9) Requires only a “good faith” effort to learn English (Line 879).
10) Price break on fine for those who overstay their visas – $1,000 vs $2,500 (line 820).
11) State offers interest-free payment plan for fine. (line 828)
12) Permit applies to ALL job sectors – not just agriculture or jobs “Americans won’t do”. We have approximately 100k unemployed Utahns that this will affect.
13) Background check does not check crimes committed outside of the USA. (line 783).
14) No background check required for anyone covered by the family permit (line 796).
15) Illegal immigrant must get a Driver Privilege card, OR simply say they won’t drive (line 762).
16) Creates an account in the General Fund, using taxpayer money, to try to reimburse victims of identity theft, but only if the perpetrator is convicted and only if there’s money in the account. (line 1426, 1437, 1451)
17) The two-year permit has unlimited renewals. (line 805, 817)
18) Family permit has no cutoff date by which the family can be brought illegally into the country/state (line 796)
19) Could issue Social Security numbers to illegal immigrants (line 678).
20) E-verify required only for businesses with 15 employees or more. (line 954).