SACRAMENTO, Calif. — Against a backdrop of perceived federal inaction, a growing number of cities, counties and states are taking matters into their own hands when it comes to trying to reverse the trend of illegal immigration.
From the smallest towns to entire states, governments are passing laws that target illegal immigrants in such indirect ways as preventing them from parking their cars to forcing city workers to decide if people are legal before they can rent homes, use libraries or get jobs.
State attempts at targeting undocumented foreigners are nothing new and have raised constitutional questions for more than a decade. California's ill-fated Proposition 187, passed by voters in 1994, was one of the early attempts that sought to require health workers and teachers to card people.
But legal skirmishes are expected with greater frequency after the U.S. Senate's failure this summer to enact immigration revisions. The void has only emboldened opponents of illegal immigration whose stridency seems unlikely to fade.
"There's a great likelihood of mischief and trouble when local places get involved in immigration laws," said Kevin Johnson, a law professor at the University of California, Davis.
In Arizona, Democratic Gov. Janet Napolitano reluctantly signed legislation on July 2 requiring all employers in the state to run new hires through a federal database operated by the Department of Homeland Security.
Although Napolitano said she generally does not agree with local and state governments regulating immigration — which falls under federal jurisdiction — she signed the law because Congress failed to take action.
The Senate bill would have legalized millions of illegal immigrants while increasing enforcement measures and ordering American employers to use Homeland Security's federal database.
Activists such as Marie Waldron, a City Council member in Escondido, about 30 miles north of San Diego, actually sought to topple the Senate bill, believing it treated illegal immigration too gently.
Waldron once led a failed attempt to create a California state border police. She also was the architect of a local law that would have made it illegal to rent housing to any illegal immigrants. The housing law cost the city $200,000 to defend in court, money that Waldron believes was well spent, even though the law ended up being scuttled last December.
"I wanted to see this all the way through court," Waldron said. "I was opposed to the city withdrawing from it. I also very much support training local police to be immigration officers."
Despite the setbacks, as long as the federal government fails to enforce current laws to their satisfaction, local officials say they're going to do it themselves — using local power.
Waldron said she's now pursuing an indirect method to drive out illegal immigrants, whom she blames for degrading Escondido's quality of life. She wants to outlaw overnight parking on residential streets unless people can prove they live there and have valid California driver's licenses.
Before the Escondido City Council decided to abandon the legal battle to defend Waldron's housing ordinance, a federal judge issued a temporary restraining order against it, citing "serious questions" of due process and other constitutional issues.
The American Civil Liberties Union and the Mexican-American Legal Defense and Educational Fund, or MALDEF, sued Escondido, as did a landlord. The civil rights groups continue to sue or try to persuade other cities that similar laws will end up being struck down.
In addition to unlawfully assuming federal power, civil rights attorneys argue, ad hoc local immigration policing leads to discrimination and abuse, while raising the specter of vigilantism.
Even attorneys who support local efforts to crack down on illegal immigrants warn that laws have to be crafted carefully.
Statutes that call for businesses or city workers to check someone's legal status have to be applied across the board, said Sharma Hammond, an attorney with the Washington, D.C.-based Immigration Reform Law Institute.
In other words, the rules should be obeyed whether a tenant or a job applicant is named Juan Sanchez or James Smith.
All laws, Hammond said she advises cities, should include anti-discrimination clauses, and due process clauses to avoid claims that the accused were given no opportunities to defend themselves.
Hammond's institute, a partner of the Federation for American Immigration Reform — a group that wants less immigration — has offered assistance to several jurisdictions, including Escondido and Hazleton, Penn.
Last week, a judge voided Hazleton's sweeping "Illegal Immigration Relief Act," which also targeted employers and landlords.
In Virginia, Prince William County is studying how to implement a law passed this month to block illegal immigrants from using public benefits and services. Officials are still uncertain which services would be denied — and whether they will include a range as broad as access to health clinics, public recreation facilities and libraries.
Jurisdictions already have the right to ask for federal assistance to check eligibility for certain public benefits that illegal immigrants cannot receive, including subsidized housing and non-emergency health care.
Waldron said she thought she could use Homeland Security's database program to check tenants' documents. Not so, argued opposing attorneys. That system is limited to employers.
Hammond said she's convinced that local jurisdictions' quest to use federal ID databases to scrutinize someone's status will be granted in court, as long as the purpose is to regulate business licenses or other local permits.
"Yes, there are limits and boundaries," she said, "but I think there can be a lot of success in this area."
David Jones, CEO of the Arizona Contractors Association, one of the groups suing to block Arizona's new law, hopes not.
Employers, he said, accept that the federal government has the right to order them to use the Homeland Security system, which federal studies have found is promising, but still flawed.
The system needs upgrades and more funding to prepare it for use nationwide. It has been found to make mistakes, studies show, and a major shortcoming is it cannot detect if a job applicant is using a valid Social Security number on a forged card when supporting documents are offered, too.
Jones noted that Homeland Security offers the system at this time only to employers who volunteer to use it — fewer than 20,000 nationwide.
If Arizona's law goes forward, county prosecutors will be required to investigate tips about suspected rogue employers. If employers are twice found in violation by hiring illegal immigrants, they will be permanently stripped of their licenses.
Jones said Arizona's economy has thrived with immigrant labor, and that he'd like to see a regulated guest-worker program for illegal immigrants and future foreign workers.
Although most homegrown laws targeting illegal immigrants are designed to be punitive, as in Arizona, some jurisdictions are taking a decidedly different approach.
New Haven, Conn., decided this month to issue local ID cards to immigrants, regardless of status, so they can prove their residency when dealing with police or city officials.
State Sen. Gil Cedillo, D-Los Angeles, has tried for years to persuade state lawmakers to allow illegal immigrants working in California to obtain driver's licenses in the interest of improving highway safety.
"It's more constitutional than those other laws," Cedillo said.
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