Utah's Actions Analyzed at Immigration Policy Conference

By David North on April 27, 2011

While all the talk was, subtly, in favor of mass immigration, there were some conflicting views regarding the recent Utah developments at the 8th Annual Immigration Law and Policy Conference in Washington on April 26.

The event, at the Georgetown University Law School, was co-sponsored by the Migration Policy Institute (MPI) and the Catholic Legal Immigration Network. It is a continuation of a series of such events that, with somewhat different sponsorships but with an identical policy orientation, have been happening every spring since at least 1969.

The Utah legislation was hailed as a "game-changer", a "way to alter the policy dialogue", and a hopeful sign for the open borders people at the first session, which consisted of talks by two policy makers, a lobbyist, and a former INS commissioner.

The next panel, which consisted of pro-migration attorneys, was not so sure that the Utah Compact, as its supporters call it, would be very significant or ever become fully operational. Needless to say, no one had anything positive to say about legislative developments in adjacent Arizona.

The opening address came from Mark Shurtleff, the (elected) Utah Attorney General. A disarming speaker, and a Republican, he talked in generalities about how his conservative state had taken useful forward steps to at least start fixing "America's broken immigration system."

Neither he, nor anyone else on the panel, spoke for more than a phrase about the content of Utah's immigration innovations, but he talked about the nation's immigration traditions, how the golden spike that had linked the nation's railroads in northern Utah had been hammered in by a Chinese and an Irishman, two members of then belittled migrant groups: about America's "golden door"; and his own immigrant ancestors (one of whom had arrived in Massachusetts ten years after the Mayflower).

Joining him in praise of the Utah initiative was the former AG of Arizona, Terry Goddard, a Democrat, who identified himself as a victim of the Arizona legislation calling for local police enforcement of the federal immigration law. It was universally referred to as S B ten seventy, and is currently largely suspended by a federal district court decision.

Goddard said that if it were not for Senate Bill 1070, he would be governor of Arizona. As it was last fall he lost the gubernatorial election to Jan Brewer, the Republican acting governor who had signed the bill into law and who had become well known as a result.

He listed what he thought were the damages to Arizona caused by SB 1070, including large business losses in the tourist sector, a shortage of farm workers for agribusiness, and thus financial losses there, a damage to the state's reputation, and the loss of a seat in the House of Representatives due to the departure of so many Hispanics. (I wonder about that last statement.)

The panel also included Doris Meissner, the former INS Commissioner, and Tamar Jacoby, who is President and CEO of Immigration Works USA, an employers' group that wants easy immigration and more H-1B workers. Ms. Jacoby spoke, glowingly, of how business groups had been politically useful in the Utah situation, and of the "bravery" of some business executives who spoke out publicly against immigration restrictions, as opposed to simply "negotiating with officials" behind the scenes. It was an interesting take on the concept of courage.

She said that Arizona businessmen had not noticed the onset of SB 1070 until too late, but had done considerably more pro-open borders lobbying since it was passed.

Several speakers indicated that the passage of the Utah legislation (which included a potential guestworker/amnesty program if they can get federal approval) was useful in that it gave the legislators something positive to do, rather than spending their attention only on enforcement, a way to "scratch the itch" in a more constructive way.

The next panel consisted of practicing lawyers and law professors, and their views of the Utah legislation and other immigration issues in the courts.

Omar Jadwat, senior counsel on the ACLU's Immigrants' Rights Project, wasn't very enthusiastic about the enforcement measure passed by the Utah Legislature, which he felt had many – but not all – the problems of SB 1070. "Yes, it gave the legislators something else to do, but it was like scratching an itch with a machine sander."

Jadwat, or one of his panel colleagues, also questioned whether the guestworker program would ever come into being; there was a sense that the Utah package was a symbolic victory for their side, but it would have little legal significance.

David Martin, until recently the deputy chief counsel to DHS, and the INS General Counsel during Doris Meissner's time as commissioner, did not think that the Supreme Court would do anything about birthright citizenship. He said an effort to amend the Constitution seemed a bit more likely, and cited polls that showed that 60 percent of the population would support it.

He also added that it would be "least effective possible way to fight illegal immigration."

The third lawyer on the panel, Michael J. Wishnie, Clinical Professor of Law at Yale, spoke of the "dog that did not bark," i.e., several pro-open borders initiatives that seemingly had not stirred up legal cases. He cited the creation of ID cards for illegals by two Connecticut cities that had not caused suits, and the passage of in-state tuition bills for illegals by several legislatures. (My sense is that there was a suit against in-state tuition for illegals in California, but it lost at the trial court level.)

Muzaffar Chishti, once a labor union officer, and now Director, MPI, at NYU School of Law, presided over that panel.

I first attended a predecessor of this kind of conference in 1969 at the Hotel Plaza in New York City. It had the same point of view, and the same kind of audience – some immigration lawyers, and a lot of immigration activists – but it was then co-sponsored by a different wing of the Catholic Church.

Why the Plaza? Well, the lady who funded these conferences at the time was: a) well-to-do, b) a Manhattan resident; and c) liked the Plaza. A few years later it moved to Washington, and has been held there, in more modest quarters, ever since.

Utah Driver's Licenses. Utah is one of a handful of states that issues driver's licenses to illegal aliens; depending on how you define the process, so do Hawaii, New Mexico, and Washington State. On his way out of the conference hall I asked Attorney General Shurtleff to give me a quick description of the Utah Driver's Privilege Card (the document the state gives illegals), and he obliged.

"It is vertical, not sidewise like most driver's licenses, has a photo and a thumb print, and it can only be used, legally, as a driver's license." He said earlier that 85 percent of the users had car insurance; I should have asked him why this was not demanded of all 100 percent, but he was rushing away.

A few minutes later I shared the description of the card with an old friend from INS who had been in on the design of many of its cards.

"That's interesting," he said "but I would imagine a lot of the holders of that card do not want to show it to people, because it labels them as undocumented." I had not thought of that.

"We used to have some cards in which we demanded left-looking photos from people in some classes, and right-looking photos from others."

These internal aspects of ID cards are particularly useful to law enforcement people because they often convey useful information, signals that are unknown to the people carrying the cards. If you are an illegal in Utah, and had never seen an American driver's license before, you might think that they were all up-and-down.

It reminds me a conversation I had several years ago with a Border Patrol officer about a new numbering system that had been recently installed by the Social Security Administration. "In the old days," he said "you could look at the number and know in what state the card had been issued, and what year the person was born – data unknown to the card holder, but, sadly, that's not in the new cards."

Sometimes the most useful things you learn at a conference are from conversations at its fringes.