Where Angels Fear to Tread: Oklahoma wades back into immigration debate

Immigration is back on the agenda in Oklahoma, four years after passage of  HB 1804, a law intended to give the state new powers to stem illegal immigration.  The issue is once again highly contentious, as Oklahoma wades further into areas of law traditionally reserved for the federal government.  Some are urging Oklahoma to push beyond HB 1804 and pass legislation akin to Arizona’s SB 1070 that received national attention as one of the strictest immigration laws in the country.  On the other side,  prominent business, religious, and community leaders caution lawmakers against enacting sweeping measures that target working families, are likely unconstitutional, and tarnish the state’s image.  They point to the mounting economic toll of similar legislation in other states – 45 million in hotel industry losses alone in Arizona – and worry that laws targeting employers scare off prospective investment and slow economic development.

Out of two dozen immigration bills introduced during the 2011 Legislative session, four are still active. Attention has focused on HB 1446, co-authored by the chairs of the special Joint Immigration Reform Committee, Rep. George Faught and Sen. Ron Justice, which legislative leadership has identified as “a starting point for the discussion” on immigration.  HB 1446 covers vast territory, with provisions pertaining to day labor, hiring, record-keeping, ‘human smuggling,’ and higher education.  Those who support additional state legislation on immigration cite the need to expand the authority of law enforcement to deal with drug trafficking, gang activity, human trafficking and human smuggling, problems which are seen to be exacerbated by illegal immigration.  Yet, HB 1446 (and sections of SB 908) only address the human smuggling concern and would make it arguably more difficult to isolate perpetrators of human smuggling.

The State Department defines human smuggling as “transportation or illegal entry of a person(s) across an international border,” and federal law provides criminal penalties for bringing unauthorized aliens into the United States.  The Oklahoma bills stand in sharp contrast to the clarity of federal smuggling provisions.  By equating the “smuggling of human beings” with “procurement of transportation,” the bills seek to classify any service or property that facilitates transportation as human smuggling.  This broadens the definition to routine commercial transactions with unauthorized aliens already residing in the state who aren’t being transported anywhere, encompassing such activities as banking, selling a car, arranging travel, or leasing property.

Anyone who engages in any of the specified transactions with someone they know or have reason to know is an unauthorized alien faces a potential felony charge, punishable by at least a year of imprisonment, a $1,000 fine, or both.  While federal law does contain criminal penalties for transporting and harboring unlawful aliens already within the U.S., what HB 1446 attempts to do is materially different and radically punitive.  Federal law stipulates that the criminal act of transporting and harboring unlawful aliens within the U.S. be done in furtherance of the act of smuggling, while the Oklahoma bills contain no such stipulation.  HB 1446 may use the term ‘human smuggling,’ but the bill’s attempt to legitimately address the smuggling of persons stops there.

Among the other troubling provisions of HB 1446 is an attempt to curb the right for workers and employers to solicit contract day labor in public spaces.  Section 3 of the bill would make it a misdemeanor to solicit stopped vehicles for work, or to stop your vehicle to solicit work on a street, roadway or highway.  Unauthorized aliens are barred in this section from applying for or performing any work at all in the state – a restriction specifically preempted by federal law and already ruled on by the Supreme Court.  HB 1446 and SB 683 also repeal a current law that has allowed some undocumented students to be eligible for resident tuition status, a controversial measure covered by OK Policy that puts a college education out of reach for hundreds of bright young Oklahoma students.

Passing legislation without convincing evidence that it addresses – and solves – some acute problem facing the state seems misguided.  Immigration is a federal policy issue that can only be regulated by the U.S. government, not intermediated by fifty different states.  If reforms are necessary, it’s in Oklahoma’s best interest to carefully consider measures that target specific problems.  Any prospective legislation must respect both the U.S. Constitution and the humanity of immigrant families and communities.  Only a firm commitment to Oklahoma’s core values of individual freedom and opportunity will guide us through this quagmire.

Update:  For a final update on these bills, see Where Are They Now? Bills we kept our eye on