Robb: Arizona Proposition 314 — much ado about nothing much

I favor amnesty for most of those currently in the country illegally. Most have been here for a considerable stretch of time, and have settled lives in this country. Millions are part of blended families, with a legal spouse or children.

For the most part, they followed our country’s de facto immigration policy for many years: That we would attempt to nab illegal border crossers. But if illegal immigrants safely reached the interior and otherwise led a lawful existence, they would generally be left alone.

However, I’ve never favored that de facto immigration policy. Immigration laws, like all laws, should be enforced, not ignored. And enforcing immigration laws is particularly important, as an exercise of the rights of national sovereignty. 

Over the course of time, I’ve become convinced that, politically, the body politic will not be willing to get to the issue of a broad amnesty involving millions of people until there is a good faith effort and regimen for enforcement of all our immigration laws, including in the interior. 

Doing both at the same time — often euphemistically called comprehensive immigration reform — has been just too far of a reach, politically. There have been two serious attempts at it in Congress. In both cases an Arizona GOP senator played a leading role, John McCain in the first attempt and Jon Kyl in the second. Neither got close to passage. There has not been a serious congressional effort at comprehensive immigration reform in nearly two decades.

I don’t think a role for state and local law enforcement in such a good faith effort and regimen should be off the table. There are mechanisms in federal law for that to occur. I wouldn’t rule out independent state and local action either.

That's a long-winded preface for an analysis of Prop 314, which has managed to stir up all the unhelpful emotions about immigration policy on both sides of the debate while doing virtually nothing substantive. The pro and con statements in the publicity pamphlet are only faintly tethered to the actual specific provisions of Prop 314. 

There are two provisions that purportedly increase the role of the state in deterring illegal immigration. The first requires that the state and local governments verify legal presence for any governmental “public benefit” by using the federal electronic Systematic Alien Verification for Entitlements system. “Public benefit” is loosely defined to include social welfare programs as opposed to government services broadly available to the general public, such as fire and police. 

However, all the major federal social welfare programs administered by the states and local governments ― Medicaid, Temporary Assistance for Needy Families, food stamps, housing assistance ― already require verification through the SAVE system. Overwhelmingly, this is a redundant requirement, not a new one. In fact, I have yet to hear a Prop 314 proponent identify a single “public benefit” program that is not now required to use the SAVE system which would be under the ballot measure.

The second is the most misunderstood, or misrepresented, provision in the measure, particularly by opponents. It would create a state crime of illegally crossing the border between ports of entry and purports to give state judges the authority to order offenders deported.

However, the provision only applies prospectively. And it requires a law enforcement official to have witnessed the illegal crossing or seen it on videotape.

Arrests are also permitted if there is “any other constitutionally sufficient indicia of probable cause.” That might apply if a van filled with illegal immigrants is pulled over near the border. It wouldn’t apply in ordinary traffic stops, given the prospective application of the law. Even if there might be indicia of illegal presence there would not be indicia of an illegal crossing, particularly of an illegal crossing on a particular date in the past, after the effective date of the provision.

The contrast with SB 1070 is stark. SB 1070 made illegal presence a state crime irrespective of when it occurred or how it occurred. Prop 314 would make illegal crossing a state crime but, as a practical matter, only if directly observed by the arresting officer. No state or local law enforcement agency is going to be stationing cops as border monitors or assigning them to identify and then find illegal immigrants caught crossing on videotape.

You can forget all the predictions of huge costs for the implementation of this provision of Prop 314. In reality, the provision will rarely be used. And, by its own terms and unlike SB 1070, it can’t be used against those currently residing in the state illegally, or those in the future who become illegally present in other ways, such as a visa overstay.

Moreover, the provision doesn’t even go into effect unless a similar provision that has been adopted in Texas, or some other state, is in effect for at least 60 consecutive days. This conditionality should spare the state from having to defend the provision in court.

Thus far, the U.S. Supreme Court has held that states can’t make illegal presence a state crime, most emphatically in striking down most of the provisions of SB 1070. The Texas law is being litigated and has been enjoined. There is no reason to adopt this largely toothless provision as a standby in case the high court changes its mind, rather than waiting to see what broader remit for state action the court might sanction.

There are only two other provisions with arguably greater effect. Penalties for selling deadly fentanyl are increased, but only if it is imported. That’s a distinction that makes no sense as a matter of criminal law. It was adopted to skirt a single-subject legal challenge.

The only substantive provision directly related to illegal immigration is to create a state crime of offering false documents to scam the E-Verify system, a parallel federal electronic verification mechanism for employment eligibility. State law requires employers to use the system. The only way to beat it is to give an authentic name and Social Security number. If an illegal immigrant uses someone else’s real name and Social Security number to game an E-Verify check, that’s identity theft. There are penalties for employers not using the system, but not for applicants gaming it in this way. Standing alone, this provision would be worth enacting.

But, of course, it doesn’t stand alone. It is part of this package of largely toothless provisions masquerading as a get-tough-on-the-border arsenal, a masquerade that opponents have opted to join.

Boiled to its essence, Prop 314 is a cynical political ploy, to give Republicans something to talk about this election cycle, after three cycles of substantial underperformance. Neither side wants to talk about what Prop 314 would actually do, which is: nothing much. 

Editor's note: Robert Robb writes about politics and public policy on Substack. Reach him at robtrobb@gmail.com. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.