Georgetown Immigration Conference: Utah AG Shurtleff Speaks Out

Georgetown University Law Center held its eighth annual Immigration Law and Policy Conference on April 26th, in cooperation with CLINIC, the Catholic Immigration Network, and the Migration Policy Institute, a non-partisan Washington think tank. This year’s conference was notable for its focus on immigration measures being taken at the state level, in the continuing absence of Congressional action to reform the U.S. immigration system at the national level – where most serious commentators agree it belongs.

This year’s keynote speaker was Utah Attorney General Mark Shurtleff, who was a driving force behind the Utah Compact movement, a broad coalition of leaders from Utah’s business, political, law enforcement, immigrant advocacy, and religious communities who came together to work out a compromise immigration bill, heading off attempts to adopt an outright copy of Arizona’s punitive SB 1070 legislation. Like Arizona, Utah was among the growing number of states that have taken immigration law into their own hands. Unlike Arizona, however, Utah sought a solution that did not attempt to drive undocumented immigrants from their state, but acknowledged that they comprised a necessary part of the state workforce, and created legal mechanisms that eventually could provide state work permits and other protections. (See State Immigration Bills: Utah’s Unique Approach, MurthyBlog, 17.Mar.2011.)

Arizona’s negative experience with SB 1070 was a cautionary tale for Utah, Attorney General Shurtleff explained. If Utah responded to its illegal immigration problem in a more moderate, measured way, it was in part because they had seen the boycotts and bad publicity that attended Arizona’s passage of SB 1070. According to AG Shurtleff, however, enlightened self-interest was far from the only factor behind the success of Utah’s immigration compromise. Shurtleff said Utah’s new immigration law was just as much a product of a serious discussion about the basic social and political values that Utahans share, and a recognition of the need for a solution that is fully consistent with these values.

Shurtleff spoke of the Utah Compact as a sort of Golden Spike moment, one that brought together people from opposite sides of the immigration issue – alluding, of course, to the last railroad spike that was driven into the Transcontinental Railway, when the eastern and western sections were joined at Promontory Point, Utah, in 1869. He noted that the railroad was constructed largely by immigrants: Chinese laborers working eastward from the Pacific, and Irish workers moving west from the Atlantic, both groups were the targets of discrimination by nativist elements. Shurtleff seemed to hint that undocumented Latino workers occupy a similar position today.

AG Shurtleff was quick to point out that his job is to uphold the rule of law, and he underscored his support for federal efforts to capture and deport criminal aliens. In Shurtleff’s view, though, an enforcement-only approach actually undermines public safety, sowing fear and distrust among undocumented immigrants who then may hesitate to report crimes or come forward with useful leads to help put dangerous, violent lawbreakers behind bars. He acknowledged that illegal immigration presents complex problems that require carefully calibrated solutions, not the one-size-fits-all punitive measures called for by the shrillest of the anti-immigrant activists: “Just say no doesn’t work.”

AG Shurtleff also acknowledged the frustration of people in the border states, and said he understands why people are upset about illegal immigration, but he cautioned against letting immigration policy be dictated by the anger, overheated rhetoric and misinformation that have dominated public discourse on immigration in recent years. As Shurtleff sees it, shrillness is what undid immigration reform at the federal level, and he called for a national dialogue on immigration that would bring people together, in much the same way that the Utah Compact did. He is currently working on plans to do just that.

As a political solution, the Utah Compact and its legislative analog have drawn rave reviews, setting an example for civil discourse across the lines that divide us. As a legal solution, however, the Utah compromise still leaves much to be desired, as several of the panelists pointed out. Like the Arizona law, it suffers from a fundamental flaw: under the Supremacy Clause of the U.S. Constitution, states are not allowed to dabble in foreign relations and other matters left exclusively in the federal domain – such as immigration. AG Shurtleff himself acknowledged that Utah will need to secure federal waivers within the next two years before several key provisions can take effect, and emphasized the difficulty of making this happen.

Several commentators noted that we simply cannot afford to have 50 separate immigration policies that vary state to state; compliance would be astronomically expensive, if such a system could even be made to work. It would lead to forum-shopping and gaming of the system, and make arbitrariness and unfairness the order of the day. In a later panel, ACLU Counsel Omar Jadwat said there may actually be less to the Utah compromise than meets the eye, considering that the most immigrant-friendly provisions do not take effect for two years – assuming Utah gets the federal waivers its needs – while the more punitive, Arizona-style elements of the law take effect right away. In Jadwat’s view, the Utah compromise is little more than a watered-down version of SB 1070.

That said, most panelists agreed that the Utah compromise represents a political breakthrough, if not necessarily a legal one. Attorney General Shurtleff has brought civility and a sense of the common good back to the immigration debate. We are all in this together, he points out, and pragmatic, principled compromise will ultimately yield a better solution than a winner-take-all battle, driven by rigid ideologies. Ultimately, Shurtleff says, we need a solution that represents our best values, not our fears or prejudices. Let’s hope Congress will learn from this example.