Bloggings on Immigration Law

by Roger Algase

Republican Victories In the November Election May Present a Big Challenge for CIR Negotiators.

The title of this post may seem so strange that some ID readers may be reading this comment just to find out exactly what this writer was imbibing over the Thanksgiving holiday. Republcan victories? What Republican victories?

For the record, I did indulge heavily during the holiday period in my two favorite beverages - pure ice tea and organic cherry juice - and no other liquid. 

So why am I talking about Republican victories in this November's election, when the Democrats won a majority of the votes for the White House and both Houses of Congress? The answer lies at the state level.

Republicans now hold 30 governorships, the highest total since the 1920's. They also now have legislative super-majorities in a number of states, mainly in the South and the Great Plains, according an Associated Press November 25 article: One-party control of state legislatures is the highest since 1928. 

Among the states in which the Democrats have no power to stop Republican controlled legislatures from passing any law they wish are Indiana and Oklahoma, where the Republicans have veto-proof super-majorities. Georgia may fall into the same category. Indeed, according to this article, half the states now have veto-proof majorities, up from 13 only four years ago. (Of course, some of these super-majorities are in Democratic-controlled states).

All but three states have one-party control of their legislatures, according to the same article. These include, of course, Republican-controlled states in the South and Midwest. What might one-party Republican rule at the state level mean for immigration? The answer is obvious.

At the national level, of course, the Republicans are talking about compromise and working with the Democrats on a realistic comprehensive immigration reform bill in order to try to woo back Latino voters. But in many states, Republicans are free to pass any imigration law they like, with no effective Democratic opposition.

What might some of those immigration laws look like? This is a question which Republican states such as Arizona, Alabama, South Carolina and Georgia have already answered. Therefore, it is not inconceivable that at the federal level we might see a liberalized CIR law enacted, while at the same time, even more states go down the road of racial profiling and terrorizing immigrant communities in pursuit of the far right wing Republican goal of "enforcement through attrition", a/k/a "self -deportation". 

What can be done to avoid this type of a schizophrenic immigration policy, which could be aggravated even more by Republican judicial support for "states rights" over immigration enforcement, especially at the Supreme Court level, as we saw clear signs of in, for example, Justice Scalia's dissent in the Arizona immigration law case?

The only antidote would be a powerful re-affirmation and extension of federal preemption over all aspects of immigration enforcement in any CIR law. If an immigration reform bill does not make clear that the states are out of the business of immigration enforcement, period - no ands, ifs or buts - even the most enlightened federal CIR law may turn out to be meaningless.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.