Earlier this month, Utah’s governor signed off on a set of bills that include provisions similar to Arizona’s SB-1070 immigration law, in addition to language that would allow undocumented immigrants to live and work in the state of Utah and create a migrant worker partnership with Mexico. Now, Chairman of the House Judiciary Committee Lamar Smith (R-TX) is chiding the Department of Justice (DOJ) for going after Arizona for passing an immigration law that is allegedly federally preempted and not pursuing a similar case against Utah.
“If the [Obama] administration is serious about having a uniform immigration policy rather than the ‘patchwork’ of state immigration laws you profess to oppose, then the administration needs to take action against the Utah law,” stated Smith in a letter to DOJ Secretary Eric Holder. “Under normal circumstances, the Justice Department should take legal action against the Utah law for usurping Congress’ constitutional authority to determine national immigration policy,” Smith claimed.
Utah’s political leaders shot back. Utah Attorney General Mark Shurtleff (R) stated, “This is your responsibility, Congressman Smith…It is your responsibility to do comprehensive immigration reform. What are you doing? Instead of wagging your finger at Utah when we’re actually trying to do something here.” Utah Gov. Gary Herbert (R) agreed. “Typical Washington-attempt to deflect criticism that comes from Washington’s abject failure to address immigration, then sue a state over something that won’t even take effect for two years, rather than use those two years to do something positive,” stated Herbert.
Yet, earlier yesterday, Smith dismissed the possibility of passing immigration reform. “It’s premature to talk about anything other than enforcing the law and protecting jobs for American citizens and legal immigrants,” Smith said. Rather than focusing on immigration reform, Smith prefers to push for more immigration enforcement, including a controversial electronic verification program.
If anything, Smith undermines his own defense of Arizona’s immigration law when he asks Secretary Holder to bring a civil action against Utah’s law on the basis that the government made the preemption argument in its case on Arizona. Smith’s argument goes as follows: the DOJ believes SB-1070 is unconstitutional, so it must also believe that Utah’s law is especially unconstitutional. Yet, that line of reasoning only really works if Smith were to admit that Arizona’s law is unconstitutional. Smith claims that the difference is that Arizona’s law “complements” federal law while Utah’s law usurps it. However, two courts have already concluded quite the opposite.
Meanwhile, there are also practical reasons for why the DOJ may choose not to pursue a case against Utah. Although the Utah and Arizona laws are substantively different, both boil down to the same legal issue: whether these state and local laws are federally preempted. It would be somewhat redundant for the DOJ to pursue essentially the same case against Utah — particularly when, as Herbert pointed out, Utah’s law isn’t set to go in effect for another two years and the case against Arizona could set an important judicial precedent.