Last April, when Gov. Jan Brewer signed legislation authorizing Arizona to enforce federal immigration laws, President Obama stepped before the television cameras in the Rose Garden and threatened to take action to prevent the law from taking effect. Within weeks, his Justice Department filed suit against Arizona on the grounds that S.B. 1070 pre-empted the federal government's exclusive authority over immigration policy.
In contrast to Arizona's effort to enforce immigration laws passed by Congress, the Utah legislature enacted legislation in March that creates a completely separate immigration policy for Utah. One of the bills signed by Gov. Gary Herbert would grant two-year work permits to illegal aliens who reside in Utah, provided they have no criminal records. Because federal law expressly forbids illegal aliens from working anywhere in the United States - including Utah - the law gives the governor until 2013 to negotiate a waiver with the federal government. Even if a waiver is not issued, Utah would begin issuing work permits to illegal aliens beginning in 2013.
The 1986 federal law prohibiting the employment of illegal aliens does not include provisions for waivers - a point that was noted by Utah's own legislative attorneys. Thus, the executive branch has no authority to negotiate, much less issue, a waiver that would allow Utah to turn illegal aliens into legal guest workers. To do so would require the Obama administration to invalidate unilaterally a federal statute.
A second piece of legislation signed by Mr. Herbert grants Utahans the right to sponsor up to two foreign individuals, or one entire family, to live in Utah. Utahans, like other Americans, already enjoy the right to sponsor immigrants to the United States provided that they fall within the parameters and quotas established under federal law. Thus, any immigrant intending to settle in Utah must first be granted a visa by the federal government, as states lack any legal authority to admit immigrants.
To date, the only reaction from the Department of Justice to Utah's blatant usurpation of the federal government's exclusive authority over the power to regulate immigration has been a vague statement that they are "monitoring" the situation. That tepid response speaks volumes about the administration's willingness to subvert the Constitution to achieve political ends. Arizona's effort to enforce immigration laws passed by Congress follows a long line of legal precedent that clearly establishes the right of state and local governments to assist in the enforcement of federal immigration laws. Utah, on the other hand, is flagrantly disregarding the federal government's constitutional authority over immigration policy.
The administration clearly supports Utah's objective of granting legal status to illegal aliens (and presumably the right of states to admit new immigrants) and is choosing to do nothing to defend the Constitution. The administration obviously opposes the enforcement of laws against illegal aliens, except in very limited circumstances, and moved decisively to prevent Arizona from enforcing them. In fact, in seeking an injunction against S.B. 1070, the administration argued explicitly that it was defending its constitutional authority not to enforce immigration laws.
The administration's failure to sue Utah could trigger a constitutional confrontation over the separation of powers. The Constitution vests the legislative branch with exclusive authority to make immigration laws. The role of the executive branch is to carry out the laws enacted by Congress (whether the administration in office likes those laws or not). Waiving a core provision of U.S. immigration law - the prohibition against the employment of illegal aliens - would clearly exceed any reasonable discretion that the Constitution affords the president in carrying out the law.
As recently as his State of the Union address, President Obama indicated that he will keep trying to gain amnesty for illegal aliens. In the meantime, however, he has an unambiguous responsibility to "preserve, protect and defend the Constitution of the United States," even if he might approve of the political objective for which the Constitution is being subverted.
Utah's new laws present a clear challenge to the federal government's exclusive constitutional power to make immigration policy. It is time for the Justice Department to stop "monitoring" the situation in Utah and assert the federal government's authority over immigration policy. The administration that sued Arizona for trying to uphold federal immigration law, must take now take action against Utah for defying federal immigration law.
Dan Stein is president of the Federation for American Immigration Reform.
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