States take action on immigration as Congress stalls


File:  A small group from the Mexican Army can be seen through the fence that stands on the United States/Mexico border on Thursday, February 28, 2013, in Naco, Ariz. (Photo by Jahi Chikwendiu/The Washington Post)

Update: An earlier version of this post incorrectly characterized a Georgia bill on driver’s licenses.

Immigrants coming to the United States increasingly face a distinctive choice: Live in Red America, where laws clamping down on services to those in the country illegally are winning support, or Blue America, where life is a little easier for them.

Comprehensive immigration reform languishes amid partisan sniping on Capitol Hill. But Republicans and Democrats in 45 state legislatures around the country have taken decisive action in the last year to revise their own laws relating to immigration, and how their states treat illegal immigrants.

“We are still waiting for the federal government to fix the immigration system,” said Washington State Rep. Sharon Tomiko Santos (D), the co-chair of the National Conference of State Legislatures’ immigration task force. “States are doing the best we can with the tools we have available to us. State legislators face fiscal challenges in education, health and law enforcement. To do nothing is not an option.”

Despite the congressional inaction, both Republicans and Democrats have taken steps in response to the federal government. Republican-controlled states acted to tighten immigration laws in response to a 2012 Supreme Court decision that struck down some law enforcement elements of Arizona’s controversial Senate Bill 1070. A handful of Democratic-controlled states acted after the Department of Homeland Security said it would offer a temporary reprieve, and permission to work, to low-priority illegal immigrants.

Immigrant rights activists said they were pleased by the progress made outside of Washington. States “witnessed a significant increase in pro-immigrant activity” over the last year, the National Immigration Law Center wrote in an October report. “States led the way by adopting policies designed to integrate immigrants more fully into their communities.”

“The blue states are out in the front, adopting a wider range of measures,” said Tanya Broder, a senior attorney at NILC and one of the authors of the report. But, she said, Republican legislators are beginning to sponsor tuition and license bills in states like Virginia and Pennsylvania, where the GOP controls at least one chamber. “There are Republicans who are responding to the growing political power of [immigrant] communities,” Broder said.

All told, 437 immigration-related bills were signed into law this year, according to a tally maintained by the NCSL. And more legislation is likely to make progress in key states this year.

In red states, the focus of immigration legislation has shifted in recent years as bills passed in key states ran into court challenges. After the Supreme Court decision in 2012, five states — Alabama, Georgia, Indiana, South Carolina and Utah — passed legislation similar to Arizona’s measure. All five are subject to ongoing litigation.

Those challenges, and the prospect of comprehensive action in Congress, slowed the wave of harsh anti-illegal immigration measures in state legislatures. In 2013, only Georgia passed new laws amending the E-Verify program for employers, and redefined eligibility for some public benefit programs.

The shift in focus has some immigration hardliners worried about the future. Most blame the Obama administration, which has relaxed some rules on deportations even as it has set new records for the number of immigrants sent out of the country.

“We’re going to see … really a surge of immigration legislation at the state and local level,” said Bob Dane, a spokesman for the Federation for American Immigration Reform, an anti-illegal immigration group. “And the reason is, is because it’s really precipitated from the top down. You’ve had five years of the Obama administration systematically dismantling interior and perimeter enforcement [and] gutting the laws.”

On the other hand, Democratic-controlled states allowed students who are undocumented to pay in-state tuition at state-run colleges and universities. In 2013, Colorado, Minnesota, New Jersey and Oregon expanded in-state tuition access. Now 15 states have so-called “tuition equity” laws, allowing equal access to undocumented students.

Blue States Lead Way On In-State Tuition Laws


Source: National Immigration Law Center

California legislators pushed some of the farthest-reaching immigration reforms, including measures barring local law enforcement from handing over those eligible for federal deportation if they are arrested for minor crimes. The state also allowed undocumented immigrants to be admitted to the state bar, and passed new legislation protecting immigrants from workplace harassment.

Measures allowing undocumented immigrants to obtain driver’s licenses have found bipartisan support. In 2013, 10 states, ranging from liberal Oregon and Vermont to more moderate Nevada and Maine, both of which have Democratic-controlled legislatures and Republican governors, passed driver’s license bills. A similar law passed by the Washington, D.C. city council is pending review before Congress.

Twenty-one states passed a total of 35 laws related to licenses and identification, including firearm and hunting permits.

Western States Are More Likely To Issue Licenses


Source: National Immigration Law Center

The shift from measures aimed at enforcement to measures aimed at providing driver’s licenses for undocumented immigrants is part of a broader change in thinking, said Ann Morse, author of the NCSL report.

“We seem to go through these waves of different kinds of legislation,” Morse said. The focus on driver’s licenses “reflects the changing attitude in America about young immigrants who are here without making the choice to be here.”

“These kids are trying to go to school and will need to drive and will need to work,” Morse added.

“The Obama administration has sent a message that simply violating immigration laws in and of themselves … appears to be entirely inconsequential. So it provides a strong incentive to the states to say, why bother going through with enforcement measures,” Dane said. “The era of state enforcement may be over.”

But the era of immigration legislation is coming to a zenith. The number of immigration-related bills and resolutions introduced in 2013 represented a 64 percent spike over the number introduced the previous year. Thirty-one states passed resolutions relating to immigration in 2013; the state of Texas accounted for 96 of the 253 non-binding resolutions passed around the country.

Only five states — Delaware, Kansas, New Hampshire, Montana and Wyoming — did not pass any resolutions or bills relating to immigration last year.

Most state legislatures have returned to capitals for short sessions this year, and immigration legislation is likely to move in several more states. A handful of states are likely to act on driver’s license bills, while at least seven legislatures, ranging from Mississippi to Massachusetts, Virginia to Indiana, are considering tuition equity bills.

The Washington state House, controlled by Democrats, passed legislation to allow undocumented immigrants access to student financial aid on its first day back in session. That legislation faces an uncertain future in the state Senate, which is controlled by two centrist Democrats who caucus with Republicans.

Reid Wilson covers state politics and policy for the Washington Post's GovBeat blog. He's a former editor in chief of The Hotline, the premier tip sheet on campaigns and elections, and he's a complete political junkie.
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