Sen. Scott Beason published his defense of HB56, the Alabama Anti-Immigration Law, in the USA Today op-ed. The crux of his argument was:

Alabama has passed a law that is being decried as draconian, racist, outrageous, inhumane, harsh, cruel, too far reaching, etc. People are surprised to find that most of Alabama’s new law mirrors current United States immigration law. The state of Alabama and the federal government now have similar laws, but Alabama plans to enforce them.

Does HB56 “mirror” federal law?  This “mirrors” language has become a political talking point for supporters of this law (Bentley, Rush Limbaugh). It is, in fact, the legal theory raised in defense of HB56.

I think Senator Beason will be surprised to learn that it does not mirror current immigration law.

First, the description of HB56 as a mirror of federal law is a false description.  “To mirror” something is to to reflect, represent, follow, mimic, imitate or depict faithfully. Beason-Hammon does not simply follow federal law, it creates crimes entirely new (e.g., those that punish workers, not employers), and even when they rely on a violation of a federal provision, they provide different punishments.

Now, several law professors have debunked the legal basis of the  “mirror image” theory of the Arizona law and its copycats. (Remember the Alabama law is Arizona on crack.) For instance, Margaret Stock, professor at the University of Alaska, shows that the Arizona’s law (and the copycat, Alabama HB56) go well beyond federal law:

In defending the federal lawsuit, Arizona has argued that S.B. 1070 is a permissible attempt to engage in concurrent enforcement of federal law because S.B. 1070 only criminalizes behavior that is already unlawful under federal law.  In fact, however, the Arizona law criminalizes much behavior that is only a civil violation under federal law.

Under S.B. 1070, Arizona has chosen to criminalize all immigration violations, including those that are civil violations under federal immigration law.  For example, Arizona’s law criminalizes the act of being present in Arizona without being authorized under federal immigration law to be present in the United States, but being present without authorization is only a civil violation under federal law.  Normally, someone who is present without authorization – such as a person who overstays her permission to be in the United States – would not be charged with a crime by federal authorities, but would merely be ordered to appear before an administrative law judge.  If such a person is present in Arizona when S.B. 1070 goes into effect, however, that person will be charged under Arizona state law with a crime; she will be booked into the Arizona state jail system and provided with a defense attorney if she cannot afford one; that attorney must also – under the recent Supreme Court case in Padilla v. Kentucky– provide the person with expert advice as to the immigration consequences of the Arizona criminal conviction.  An Arizona state prosecutor must prosecute the case, which may involve determining whether the person is “removable” under federal immigration law; the prosecutor must also prove beyond a reasonable doubt that the person has violated federal immigration law, a matter that will require Arizona prosecutors and defense lawyers to become immigration and citizenship law experts.  Once provided with defense counsel, the defendant may also find out that he is really a United States citizen or otherwise entitled to apply for immigration benefits, thus mooting the state prosecution (and potentially giving the person a cause of action for damages for wrongful prosecution).

Congress has created a complex system of civil and criminal immigration laws that are legendary for their variety and complexity.  The Department of Homeland Security, the federal agency primarily charged with enforcing this complex code, has generally lacked the full resources necessary to enforce federal law to the letter, and has accordingly adopted a strategy of prioritizing its efforts so as to concentrate on the worst immigration offenders.  DHS uses a variety of civil and criminal tools to implement that strategy. To supplement its efforts, the Department has long sought assistance from state and local authorities—but only when the federal government has been able to direct and control those efforts.  By creating mandatory state criminal sanctions for even the most minor civil immigration violations, Arizona’s foray into immigration enforcement is likely to disrupt federal immigration enforcement efforts, creating a surge of immigration cases in the civil immigration and federal criminal court systems.  If other states copy Arizona’s law, the resulting tidal wave of cases could completely overwhelm federal resources.  Given these practical realities, it is understandable that the United States has chosen to seek an injunction against the Arizona law.  Rather than being a “force multiplier,” Arizona’s law would impose an even greater burden on the already overwhelmed federal immigration system, threatening to become a “ball and chain” that pushes the system to complete dysfunctionality.

That tidal wave will first hit already understaffed state courtrooms and overcrowded jails first.

(Professor Clack makes a point which will cause an extreme problem for HB56. The Alabama law makes it a crime for an immigrant not to carry his documentation. However, the”law fails to recognize that not all lawfully present immigrants are given documentary proof of their status by federal authorities.” Accordingly, some lawfully present immigrant will be arrested for not possessing “papers” that were never issued to them.)

By criminalizing the “status” of the undocumented, Alabama legislators went well beyond the immigration-enforcement assistance previously allowed by federal law.

In a just released law review, Law Professors Gabriel Chin and Marc Miller explain how the power to arrest is separate from the power to criminalize.

While a state actor’s decision to arrest “leave[s] crucial decision-making power in the hands of the Federal government, which is free to choose among criminal, civil and administrative sanctions and remedies authorized by the INA,” state decisions to legislate or to prosecute eliminate that federal discretion.

They explain further:

The distinction between arrest, on the one hand, and criminalization and prosecution on the other, is critical. Arrests leave discretionary decisions in the hands of the federal authorities. Even after an independent state decision to arrest, the suspect is handed over to federal authorities for disposition. Under the INA federal authorities can still decide whether to proceed with a prosecution, use a civil remedy or grant some form of relief or visa to which the noncitizen is entitled under the law. The discretion inherent in the federal immigration regime, and in federal criminal enforcement more generally—the power to charge or not, to decide what to charge, to use civil or administrative responses—is as much of part of the law of immigration as the relevant statutory text. States are free to support federal civil policies in various ways, including hearing some federal claims as such in state courts, and passing complementary civil laws. In the criminal context the rule is reversed. By Supreme Court decision and federal statutes dating the Judiciary Act of 1789, federal crimes may be tried only in federal courts.

As an excellent example of the precedent being requested, the professors show:

For example, local police are authorized by federal statute to arrest deserters from active duty service in the United States military.110 However, this does not imply that states and
localities are invited to establish rules for military discipline of active duty troops and try them in their courts.

Even if states are allowed to “mirror” federal laws, as mentioned above, HB56 does not follow or repeat federal immigration law. Professor Carissa Hessick points out that mirror image is not even applicable for some provisions of HB56.

Of course, not all of the challenged provisions in S.B. 1070 can be justified under the mirror image theory.  For example, Section 5(C) criminalizes unauthorized work and attempts to secure such work, even though federal legislation targets employers who hire unauthorized workers rather than the workers themselves.”

This is the crux of the preemption arguments; it is also the reason most of the law will likely be struck down as unconstitutional.

Ultra-conservative, radio talk-show host Laura Ingraham skewered Scott Beason yesterday over the violation of religious liberty by the Alabama Anti-Immigration Law, #HB56. He finally implicitly concedes that churches and families working working soup lines or even providing assistance to illegal immigrant tornado victims violate HB56.  The audio can be found here.

A few points of rebuttal, though:

1. Beason is wrong; corrupt motives and intent are not required to violate this law. Based upon legal precedent, any support provided to a “illegal alien” will be deemed to encourage “their unlawful presence. Rather, the broad definition of “knowing” is the operative word in the statute and, therefore,  makes it so dangerous.

2. Beason, in the radio interview, actually changed his explanation for intentionally removing the church exemptions from the legislation. Before, his reason was that “bona fide religious organization” was not defined in federal law. (It is, though.) Now, he says it was removed because of churches were “importing” illegals into the state “because they believe that is a good thing.”

3. Beason states that he does not believe any pastors or people will be arrested for being Good Samaritans. However, he forgets that law enforcement officials and prosecutors will be sued if they don’t fully and vigorously enforce the law.

It appears that while the Anti-Immigration Bill was the center-piece of the GOP’s agenda in 2011, cracking down on poor, welfare-recipients will highlight the next session. As Mike “Machiavelli” Hubbard plans:

One bill being considered in the upcoming session requires drug tests for welfare recipients.

“Steve (McMillan, R-Gulf Shores) and I will be called everything in the book,” Hubbard said. “We’ll be called Nazis. There’s no telling what they’ll call us, but why should you take your hard-earned money and send it to Montgomery for us to distribute out to someone who doesn’t work and it’s easier for them to get a paycheck than to work and they go out and buy drugs with it?”

Like HB56 copied injected crack into the Arizona Anti-Immigration Bill, this drug-screening the poor is another copycat legislation from Florida.

I found this bit of off-scene political theater intriguing:

Sen. Scott Beason, R-Gardendale, introduced a similar bill in the Alabama Legislature shortly before the end of its spring session on June 9. It was too late in the session for the bill to go anywhere. Beason said it’s uncertain if he will sponsor the bill in the 2012 session or someone else will do it, but he expects it to be an issue that will draw attention.

Beason can make sure that happens because he serves as chairman of the Senate Rules Committee, which recommends which bills the Senate considers each day.

“I’m sure a number of liberal groups will cry foul, but it makes common sense,” he said.

What would make Scott Beason not want the limelight here? Has Scott Beason become too politically toxic to sponsor GOP-centerpiece legislation. Last term, he actually had his name affixed to the Alabama Anti-Immigration Bill. (I have yet to find another piece of legislation with a legislator’s name on it from 2011) Now, he may not even sponsor what will certainly be the GOP’s main talking point? Has he he lost “majority-of-one” status?

The Montgomery Advertiser reports that “Religious protection language was removed from immigration bill.” However, this should be filed under “old news.” Bob Terry of the Alabama Baptist reported this months ago. He wrote then:

The state Senate adopted an amendment to this bill that would have allowed churches to minister to illegal immigrants without fear of government reprisals. But that amendment was purposefully removed during conference committee considerations between Senate and House members.

The Alabama Legislature knowingly attempted to insert itself into the sacred space reserved for God alone in dictating to churches to whom and how they might minister in Jesus’ name.

The Legislature knew this issue for churches existed by recklessly proceeded head-long in in disregard to concern for churches and their mission.

Scott Beason explained why the church amendment was purposefully removed:

Sen. Scott Beason, R-Gar­dendale, who sponsored the legislation, said Bedford’s amendment used the phrase “bona fide religious organiza­tion” but left the term unde­fined. “You can pretty much plug any group into that,” Beason said. “What is a bona fide church, what is a reli­gious function. There’s no such definition in federal im­migration law.”

This could be another Keyshawn Johnson, “C’mon Man” Moment.

But I will make this one a SNL “Really with Seth and Amy” moment. There is no such definition? Really!?! You object to the phrase “bona fide religious organization” Really!?!?!?!?! Where do you think Bedford got such an awkward phrase?

THE DEFINITION IS IN THE FEDERAL REGULATIONS OF OUR FEDERAL IMMIGRATION LAWS!  For Title 8, Aliens and Nationality, 8 C.F.R. §204.5 defines:

Bona fide nonprofit religious organization in the United States” means an organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations, or one that has never sought such exemption but establishes to the satisfaction of the Service that it would be eligible therefor if it had applied for tax exempt status.

Bona fide organization which is affiliated with the religious denomination” means an organization which is closely associated with the religious denomination and which is exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations.

Their defense of this bill is getting silly and frivolous. Even if he was not familiar with this exact definition in this regulation, other Federal statutes, case law, and regulations actually provide an extensive definition of church and “religious organizations.” Most exhaustively, for instance, federal tax law narrowly defines the “churches” and ‘religious organizations” that are eligible for Section 501(c)3, tax-exempt status.

I find his concern for technical definitions in federal immigration law hilarious considering the entire piece of legislation otherwise overly simplifies immigration regulations and disregards existing definitions, exceptions, and exemptions of federal immigration law.

At this point, we must ask: were there any consultations with immigration attorneys when the law was drafted? Did anyone think those lawyers with experience in the laberynthine workings of the immigration statutes and process could provide some wisdom?   Did anyone slow down long enough to seek guidance from any immigration law professor? What about advice from the Alabama Law Institute? Or did anyone do even a superficial Westlaw or Nexus/Lexus search?

  • The Beason-Hammon Anti-immigration Bill “wasn’t supported by facts and wasn’t based on real economic theories and research.” – Dr. Keivan Deravi, an economics  professor at Auburn Montgomery and budget adviser to the Legislature.
  • “The law raises the ‘perception factor’ about the state and that capital investment ‘will tend to avoid Alabama relative to other Southern states. Specifically, how does it paint Alabama as a state willing, once again, to use state law to discriminate against politically unapproved groups? The law represents movement back in a populist direction I had hoped this Legislature would avoid.”  – Dr. Chris Westley, associate professor of economics at Jacksonville State University.
  • Anti-immigration laws like Alabama’s are jobs and economic growth killers. It’s a tried and failed approach that plays well politically, but is based on flawed economic logic. Immigration laws are a way to tarnish and scapegoat people who don’t look or sound like us.” – Dr. Scott Beaulier, executive director of the Johnson Center for Political Economy at Troy University

These are the professional opinions of economists from our local universities. However, like the federal judges, county commissions, editorial boards, church leaders,  and lawyers which have expressed opposition to Beason-Hammon, they “absolutely, positively wrong” according to Sen. Scott Beason. For the Republican Legislators have special knowledge (or decoder rings).

In Beason’s mind,

Beason said the checks would get rid of illegal workers that are taking jobs that should go to legal Alabama residents. This is a jobs bill.

However, this runs contrary to studied evidence. As Michigan economics professor Mark Perry says,

“There is no fixed pie or fixed number of jobs, so there is no way for immigrants to take away jobs from Americans. Immigrants expand the economic pie.”

According to Jeremy Thornton, an economics professor at Samford University’s Brock School of Business,  the law is

one of the “rare examples” where there is no economic benefit, only setbacks. “The state will be poorer because of this bill.”

Beason’s arguments reveal a very primitive understanding economic theory. As stated by this study:

[Researchers] show that the U.S. economy is dynamic, not static as many critics of immigration either assume or at least appear to argue. “While our modeling suggests that there would be reductions in the number of jobs for U.S. workers in low-skilled occupations, this does not mean that unemployment rates for these U.S. workers would rise,” according to [researchers] Dixon and Rimmer. “With increases in low-skilled immigration, the U.S. economy would expand, creating more jobs in higher-skilled areas. Over time, some U.S. workers now in low-paying jobs would move up the occupational ladder, actually reducing the wage pressure on low-skilled U.S. workers who remain in low-skilled jobs.”

According to Samford Economics Professor Thornton:

Thornton said there are assumptions that enforcement of immigration law will provide jobs for out-of-work Alabamians. However, that’s known as the “lump of labor fallacy,” which refers to the idea that there is a fixed number of jobs. However, he said that’s like saying a football team can only score a certain number of points in a game.

In fact, the economists are correct Beason has it completely backwards:

Critics of immigration assume a zero-sum game, whereby every illegal immigrant deported from the country opens up one of a fixed number of jobs, which would then be filled by a U.S.-born worker. That’s not how things work. Dixon and Rimmer (and other economists) point out that low-skilled workers can help make the U.S. workforce more productive. “Under policies that increase the number of low-skilled immigrants, the occupational mix of U.S. workers shifts in a way that increases their overall productivity. In contrast, reducing the supply of low-skilled immigrants “draws Americans into less productive, lower-paying jobs than they would have occupied otherwise.” In addition, changes in the U.S. labor supply affect the amount of capital invested in the economy.

Remember in February when the Republicans said:

‘There is no single issue more important to me than putting Alabamians back to work and growing our economy.”

He went on to add, “Everything that we do in this session needs to be about creating jobs. If it doesn’t create a job then it kind of needs to go down a level because that’s what we need in this state.”

Considering the analysis of these economist,  job creationdethroning the AEA” and getting payback was the number one priority of the Republican Legislature . (That job-creation thingy can be a priority next year, according to Marsh and Hubbard.)

Where is the Love, Senator Beason or Representative Hammond, to President Obama?

I have not seen yet where Republican State Senator Scott Beason nor Representative Mickey Hammond have shown any love or commendation toward the President on the President’s record of immigration enforcement. Perhaps it was drowned out by the media coverage of Beason telling a Republican Club to “empty the clip” at illegal immigrants and calling Greenetrack supporters “aboriginees.” I’ll keep looking for the praise.

Beason stated before that:

Democrats do not want to solve the illegal immigration problem because they know, this is a fact, that when more illegal immigrants move into an area, when their children grow up and get the chance to vote, they vote for Democrats. They like big government, they like programs, they’ve benefited from the day they were born because the child was born into poverty because mom and dad are poor. . .

The reality is that if you allow illegal immigration to continue in your area you will destroy yourself eventually . . .  If you don’t believe illegal immigration will destroy a community go and check out parts of Alabama around Arab and Albertville.

The President’s record on immigration is right up these politician’s alley, but I have not heard either give any credit to the President for it. Senator Beason must be waiting until the end of his testimony in the bingo trial to praise President Obama’s efforts to garner these headlines.

Criminal Prosecutions for Illegal Reentry (8 USC 1326)

Per the Washington Post: In 2009 alone, Obama’s administration deported about 400,000 people, nearly 10 percent above the Bush administration’s 2008 total and 25 percent more than were deported in 2007. The pace of company audits has roughly quadrupled since President George W. Bush’s final year in office.

6/22/11 UPDATE: ICE Announces Arrests of Over 2,400 Convicted Criminal Aliens:  Immigrations and Customs Enforcement announced yesterday that it’s seven-day “Cross Check” enforcement operation in May led to the arrest of more than 2,400 convicted criminal aliens and immigration fugitives.  The nationwide operation involved the collaboration of more than 500 ICE agents, as well as other federal, state, and local law enforcement officers, and targeted aliens with serious convictions including armed robbery, drug trafficking, and sexual crimes against minors.

An overlooked goody in “The Beason-Hammon Alabama Taxpayer and Citizen Protection Act (HB 56)” aka the Alabama Immigration Bill is the mandate for businesses to E-verify all their employees and new hires.

Effective April 1, 2012, every business entity or employer in this state shall enroll in E-Verify and thereafter, according to the federal statutes and regulations governing E-Verify, shall verify the employment eligibility of the employee through E-Verify. A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemed to have violated this section with respect to the employment of that employee.

Basically, E-verify is a list of approved workers maintained by the federal government. Not on the list: you cannot be hired. As analyzed by the conservative Cato Institute,

In simple terms, E-Verify is basically a federal “right to work” list. If you are correctly entered in the system, you can start a new job. If something is wrong with your record (such as a name change or data error), you have to wait in line at the Social Security Administration or with the Department of Homeland Security to get your record fixed.

Are you on the list? Do you have a good number? Are you sure? The system is admittedly rife with errors. According to current error rates (4.1%), if E-verify was mandatory in 2010, 190,000 Alabamians would have had to fix their records before they could start a new job or continue at their current one.

When E-Verify cannot confirm a worker’s eligibility, it issues the employer a “tentative nonconfirmation.” If nonconfirmed workers do not present themselves at federal government offices within eight days for review of their papers, the government issues a “final nonconfirmation,” barring them from working at their new jobs.

According to a recent survey of employers participating in the program, 52 percent had received at least one tentative
nonconfirmation for a new employee caused by data entry mistakes. Are you capable to prove that you are not “non-confirmed.” Will your employer give you time to prove you are confirmed? Some won’t as shown in this report.

A survey . . . found that 33.5 percent (of Arizonians) had been fired without receiving a chance to correct erroneous findings because E-Verify didn’t immediately confirm that they were work-authorized and none of their employers notified them, as required by the rules, that they could appeal the E-Verify finding.

Again where are the Tea Partiers? Basically, you will need permission from the federal government to work. Workers will have to be approved by the government to get a job.

Once built, this government monitoring system would soon be extended to housing, financial services, and other essentials to try to get at illegal immigrants. It would also be converted to policy goals well beyond immigration control. Direct regulatory power over American citizens would flow to the federal government. Even more information about Americans’ lives would flow into federal government databases. And sensitive personal data would be exposed to more security threats.

But this is just civil liberty talk; E-verify will create jobs right? Representative Micky Hammon, a Republican who was a chief sponsor of the bill is reported as saying “This is a jobs-creation bill for Americans.” However, requiring employers to use E-Verify will increase job-loss rates. The business journal Bloomburg found

If mandated for all employers [nationwide)], E-Verify would have cost $2.7 billion in fiscal 2010, according to data compiled by Bloomberg.  Small businesses, which account for 99.7 percent of employers, would have paid $2.6 billion of that, according to the data.Employers spent about $43 million in the fiscal year ending Sept. 30, 2008, to interact with the site, according to data compiled by Bloomberg based on a survey commissioned by the government. [emphasis mine)]

Hey small business owners: are you ready to familiarize yourself with the user manual, a 82 page tome on implemenation of E-verify?  As reported from Arizona,

Mike Castillo, owner of PostalMax of Scottsdale, said the program isn’t user-friendly for small-business owners. Castillo signed up for E-Verify in 2008 but didn’t use it because his parcel-services business didn’t have any turnover.

Recently, he wanted to hire a part-time worker, but a technical glitch made it difficult for Castillo’s human-resources contractor to file the paperwork with the CIS.

The federal agency sent a form in a file format that was difficult to open, and it took a few days to iron the problem out, said Castillo.

If you don’t have the luxury of a human-resources staff, E-Verify takes time away from your core business, he said.

On top of all that, it does not work, according to this report,  E-Verify cleared 54% of “illegal aliens ” to work in 2009.

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