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During the run-up to the general election in Arizona, voices from both sides of the aisle often said that Proposition 200 was an expression of the popular rage over the federal government’s failure to enforce immigration law. Arizona residents have been bombarded with reports of crime related to illegal-alien smuggling. Ordinary citizens know that business and welfare entities violate immigration law with impunity across the nation. Working voters heard both George W. Bush and John Kerry tell them that their jobs were expendable jobs that “Americans won’t do.” But Proposition 200 is much more than populist smoke. It provides citizens who have had no recourse with legal firepower to stem the meltdown in immigration law enforcement. After surviving three constitutional challenges to its appearance on the ballot, the Arizona Taxpayer and Citizen Protection Act, otherwise known as Proposition 200, was approved Nov. 2 by 56 percent of voters. Forty-seven percent of Hispanic voters supported the measure. As one backer of the initiative, the Federation for American Immigration Reform (FAIR) believes that, despite more anticipated legal challenges, the immigration reforms mandated by Proposition 200 will survive to provide a real remedy for citizens frustrated by governmental resistance to immigration law enforcement and to serve as a model for reform in other states. SHOW ME YOUR ID Proposition 200 makes Arizona the first state in the country to require both documentary proof of U.S. citizenship for first-time voter registration and presentation at the polls of a designated identity document (such as a U.S. passport, birth certificate, or driver’s license that verifies U.S. citizenship). Equally important, Proposition 200 requires state and local government agencies in Arizona to verify the eligibility of applicants for “state and local public benefits not mandated by federal law.” Identification documents issued by agencies that do not verify the immigration status of the applicant, including foreign consular IDs and many state driver’s licenses, will no longer be accepted for verification purposes. If government employees uncover any violation of federal immigration law in the course of verifying an applicant’s eligibility for benefits, they must file a written report with federal authorities. Willful failure by a state employee to file a report is a criminal misdemeanor. Additionally, “any person who is a resident” of Arizona is granted standing in any court of record to bring suit for mandamus and other relief to “remedy any violation” of the verification requirements for public benefits. These suits will run on a fast-track review process that gives them preference over other civil actions or proceedings pending in the court. Well-financed opposition to Proposition 200 came from across the Arizona establishment, including Democratic Gov. Janet Napolitano and Republican Sen. John McCain; Attorney General Terry Goddard (who now must defend the measure); the entire congressional delegation; the mayors of Phoenix, Tucson, and Flagstaff; the Arizona Chamber of Commerce; the AFL-CIO; most state and municipal government employee unions; the Arizona Catholic Conference; the League of Women Voters; the Phoenix Convention and Visitors Bureau; the Western Growers Association; and every daily newspaper in the state. Proponents of the measure constituted a grassroots coalition of local environmental activists (who link mass immigration with sprawl and overpopulation) and maverick Republican state representatives worried about homeland security and fraud. They were supported by national immigration control organizations, including FAIR. GOING TO COURT Despite its success at the polls, Proposition 200 will face a variety of legal challenges. The Mexican American Legal Defense and Educational Fund, the American Civil Liberties Union, and the National Council of La Raza have already announced their intention to seek a temporary restraining order blocking implementation on constitutional grounds. Coordinated suits are expected as soon as the initiative is certified in late November. One forum for raising these legal challenges will be the U.S. Department of Justice’s mandatory review of the voter requirements under the Voting Rights Act. Opponents might claim, for example, that the voter fraud provisions are unfair because they grandfather existing registered voters. But the challengers should find this a tough row to hoe. The immigration bar has argued rather successfully for the validity of grandfathering in the extensive litigation arising under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Another likely tactic will be to argue that requiring ID from voters who have no traditional address, such as the homeless, raises civil rights concerns. But there is nothing in Proposition 200 that prevents civic-minded vagrants from using an address of a shelter or a church to obtain proper ID. Another objection will be that state officials are being “deputized” as immigration agents. As for this “dragooning the local cops” shtick, FAIR has successfully litigated (in a 1998 California administrative dispute and in a case decided this spring in the U.S. District Court for the Eastern District of Virginia) to establish the right under state and federal law to authorize local government personnel to verify the immigration status of almost any person and freely to report actual and suspected violations to federal immigration agents. Another challenge, most likely in federal court, may address how this state statute comports with federal law. The drafters of the Arizona measure sought to avoid entanglements under the federal pre-emption doctrine, which is particularly strong in immigration matters. They were wary of the fate of California’s Proposition 187, which mandated much more sweeping restrictions on public benefits to illegal immigrants. Proposition 187 was largely nullified by a federal district judge in two 1995 cases ( LULAC v. Wilson I and II), primarily on pre-emption grounds. (The cases were controversially settled by then-Gov. Gray Davis, foreclosing appellate review.) WHICH BENEFITS? At the heart of any federal pre-emption attack on Proposition 200 will be the most frequently asked question in the debate over the past two years: What is regulated under the broad phrase “state and local public benefits that are not federally mandated”? Opponents of Proposition 200 conjured some truly nasty scenarios in their television ads, including one memorable spot where an Anglo-appearing accident victim whose arm is pinned under a boulder is told by the paramedic that he cannot be rescued until he produces his citizenship papers. But the only reasonable interpretation of the benefits provision is that it covers all the public benefits listed under the 1996 Welfare Reform Act, at 8 U.S.C. �1621 � that is, any grant, contract, loan, or professional or commercial license, as well as any retirement, welfare, health, disability, public housing, post-secondary education, food assistance, unemployment, or other similar benefit that is funded by a state or local government. Excluded are emergency medical care, short-term in-kind disaster relief, public health assistance for immunization and treatment of communicable diseases, community soup kitchens and shelter services, and services “necessary for the protection of life or safety.” In passing the Welfare Reform Act, Congress created a uniform legislative scheme regulating noncitizen benefits. State variations from that scheme are inherently suspect. That was the problem with Proposition 187, where the use of the generic term “illegal alien” was found in LULAC v. Wilson I to conflict with the federal scheme. The drafters of Proposition 200 took care not to follow in Proposition 187′s footsteps. Ironically, before the election, even Gov. Napolitano, a vociferous opponent, subscribed to this interpretation in an August 2004 memo issued by her general counsel, Tim Nelson. The governor’s office saw the broad sweep of the federal definition as a good reason to oppose the initiative � a conclusion that should now prove helpful to its supporters. On Nov. 12, however, state Attorney General Goddard issued an opinion holding that placement of the initiative language in the “Welfare” title of the Arizona code more narrowly limited its application. FAIR has filed an action for declaratory judgment challenging that interpretation. BIG CHANGES AHEAD Should FAIR’s view prevail, the consequences of this proposition will be significant. Despite claims that Proposition 200 will do little to directly stop illegal immigration, the new civil-suit provision has the potential to become a powerful enforcement tool. Private parties � for example, competing enterprises or community activists � will be able to quickly enjoin the award of a contract or grant using public monies to any entity that employs, funds, or assists illegal aliens. Defendants who contract to build or maintain a publicly funded facility or to sell any kind of product or service to a government agency and who use unauthorized labor could face financial liability for false representations or other contract-law sanctions. The evidentiary task of establishing the unlawful immigration status of workers or other beneficiaries has already been made easier by recent federal court decisions holding that identity and immigration documents, such as Form I-9s, are discoverable in civil actions. Although Proposition 200 authorizes criminal penalties, we doubt that there will be many misdemeanor criminal actions against government employees who fail to report violations, despite what the attack ads claimed. The mens rea element of the statute requires that the employee have “discovered” the violation and that his or her supervisor “knew of the failure to report.” These elements should in practice limit criminal charges to employees who have (1) conspired to provide restricted services to ineligible applicants or (2) implemented a policy or practice of passive resistance to immigration law enforcement in an openly defiant jurisdiction. Although the immigration and corporate bars and their sympathizers among the Arizona judiciary may be upset, Proposition 200 has the potential to create new opportunities for citizens and businesses, with the help of sympathetic attorneys, to go to court to redress injuries caused by the failure of governments at all levels to enforce immigration law. The large and growing population of Americans facing economic competition from illegal aliens has in the past had virtually no legal representation at all. Proposition 200 and its civil enforcement provision offers ordinary citizens the possibility of long-overdue access to the legal system. Ultimately, the threatened legal challenges to Proposition 200 may delay but will not scuttle its implementation. Despite its formal nullification by the courts, California’s Proposition 187 had far-reaching national consequences, helping to inspire the 1996 federal immigration and welfare reform laws, as well as many related state measures. Proposition 200 will have an even greater impact, given that similar legislation is being considered in nearly every state with an initiative process. Over the long term, legal attempts to frustrate the will of the voters must fail so long as the failures in national governance that underlie the immigration crisis do not change. Dan Stein is executive director and Mike Hethmon is staff counsel for the Federation for American Immigration Reform (www.fairus.org).

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