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Future illegal immigration legislation murky after Supreme Court ruling

Now that the U.S. Supreme Court has weighed in on SB1070, lawmakers appear to be in no hurry to take on the sequel.

While some lawmakers say Arizona should keep building on what they see as a victory in the high court and keep pushing for new legislation — including a handful of bills that failed in 2011 — many others, even some staunch illegal immigration hawks, are reluctant to go further.

And even if the Legislature tackles illegal immigration again in 2013, the Supreme Court’s ruling leaves a lot of questions as to what exactly the state could do that would pass constitutional muster.

Many are taking a wait-and-see attitude when it comes to future legislation.

“I think there’s more that can be done,” said Rep. Eddie Farnsworth, R-Gilbert. “Whether it needs to be done or whether there’s the political will, that (can change) based on all kinds of circumstances. I can’t speculate what issues are going to arise in the future or how we’re going to deal with them.”

One of the biggest circumstances may be whether President Barack Obama is re-elected, and what kinds of policy changes Mitt Romney would make if he wins in November. Obama’s recent policy changes at the U.S. Department of Homeland Security and Immigration and Customs Enforcement undercut the heart of SB1070.

The Supreme Court on June 25 upheld a provision of SB1070 requiring police to check the immigration status of people they suspect are in the country illegally, which many supporters say is the heart of the bill. But it struck down three sections, including one making it a state crime for an illegal immigrant to not carry registration documents and another making it a state crime for an illegal immigrant to seek work.

Rep. John Kavanagh, one of the Legislature’s most prominent illegal immigration hawks, said Arizona has made great strides on the issue in the past few years, including the remaining parts of SB1070, the Legal Arizona Workers Act, and laws prohibiting state benefits from going to undocumented immigrants. The next step, he said, is getting Obama out of office and securing the border.

“We passed the stricken provisions because we suspected that at some point the Obama administration would stop accepting many illegals, and we wanted the ability to hold them on state charges. It was overreach, and we lost. So we have to return to enforcement and we have to make enforcement effective by getting a president who will enforce the law,” Kavanagh said.

Kavanagh, R-Fountain Hills, said the Legislature will likely have to take action next year to repeal the parts of SB1070 that were struck down by the courts. He also said it’s possible that lawmakers could reintroduce the stricken parts of the law in ways that would comply with the Supreme Court ruling, and is talking with fellow legislators who are attorneys about the possibilities.

But he said many of the bills that failed in recent years are probably a dead issue. Proposals in other states regarding illegal immigrants in schools are on hold pending legal challenges, and Kavanagh said he’s not holding his breath that they would get through the Legislature anyway. And he said he sees no point in reintroducing a 2011 bill designed to set up a court battle over birthright citizenship and the 14th Amendment.

“I don’t think there’s any significant legislation that we’d be able to enact until the courts clear some measures in other states,” Kavanagh said.

Many are digesting and examining the Supreme Court ruling to see what avenues may still be open to Arizona, and others say it’s premature to start talking about new legislation.

Matthew Benson, a spokesman for Gov. Jan Brewer, said the governor isn’t considering any SB1070-related legislation at this point. But he indicated that Brewer’s attitude toward the law or other proposals could change, depending on circumstances.

“Obviously, illegal immigration is an issue that we deal with on a continuous basis, and so every session we consider whether we need to take up new laws to fight this issue,” Benson said. “It’s early. We’ve got a number of months before the session.”

House Speaker Andy Tobin and Senate President Steve Pierce both had no comment on the possibility of future illegal immigration bills.

But Tobin is eager to find ways to help law enforcement agencies increase border security and fight drug and human smugglers.

“That’s kind of the next direction,” said Tobin,

R-Paulden. “If the feds aren’t going to do it, I think we’re going to have to find resources (for) law enforcement to help with this drug and human smuggling problem we have.”

And the influential business community, which is largely hostile to anti-illegal immigration legislation, urged lawmakers to move on after the Supreme Court ruling. In a joint statement after the ruling, the Arizona Chamber of Commerce and Industry, Greater Phoenix Chamber of Commerce, Greater Phoenix Leadership and Southern Arizona Leadership Council made it clear that they want the Legislature to focus on the economy.

The groups urged federal action on illegal immigration, and expressed concern that the failure to do so could result in more SB1070-style laws.

“We applaud the Arizona Legislature for focusing its attention on economic recovery in the recently completed legislative session,” the statement read. “We will strongly encourage the next Legislature to maintain this focus on job creation and economic development. The need for a federal solution to our immigration challenges remains, as states could seek to craft their own immigration policies, resulting in a confusing patchwork of laws across the nation. No state, including Arizona, can solve the immigration problem in isolation.”

Some, however, are adamant about forging ahead with new or recycled illegal immigration bills. Sen. Steve Smith said the Legislature should look to build on what he deemed a victory at the Supreme Court, and suggested that the stricken provisions could be re-worked in a constitutional way. The Maricopa Republican also said he’d like to see his bill requiring schools to keep track of illegal immigrant students to return next session.

“I would certainly like to think that people would be emboldened by the decision,” Smith said. “I hope those in the Legislature do not take this as a slowing down phase.”

Rep. John Fillmore, R-Apache Junction, also said the Legislature should seize the opportunity on illegal immigration, but worried that leadership would be “gun shy.”

“I have severe concerns about will leadership allow us to even talk about immigration,” he said.

Rep. Frank Pratt, R-Casa Grande, doubted that there will be much of an appetite at the Legislature for illegal immigration bills, and said lawmakers should focus more on commerce and jobs.

“There are always people where that will be their primary issue. But I think that there are not as many of them as there were a few years ago,” Pratt said.

Even if the political will exists to take on new legislation, Arizona’s options may be limited. In the Supreme Court’s majority opinion, Justice Anthony Kennedy made it clear that the court views the enforcement of federal immigration statutes to be solely a federal issue, and said states like Arizona can’t regulate immigration themselves, even if their laws mirror federal statutes and have the same aims.

But Kansas Secretary of State Kris Kobach, the anti-illegal immigration attorney who helped write SB1070, said the Supreme Court didn’t shut every door. While the ruling precludes Arizona from passing laws regarding immigrant registration or prohibiting illegal immigrants from seeking work, Kobach said there are plenty of other things the state could do.

Kobach said Arizona should look to other states, such as Alabama, which have passed laws requiring schools to document illegal immigrant students, invalidating contracts signed by illegal immigrants and publicizing the arrests of illegal immigrants.

“I would say it actually allows quite a bit of state legislation,” Kobach said. “There’s lots of things outside of the registration field.”


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