As far as legality is concerned, it's entirely legal, seeing as it's a law.
As far as constitutionality goes, I submit the following:
First, the Necessary and Proper Clause
of the United States Constitution (Article One, Section 8, Clause 18) states that "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," and one of the "foregoing powers" listed is "To establish a uniform rule of naturalization" (Article One, Section 8, Clause 4).
Also known as the "Elastic Clause," this basically gives Congress the ability to enact any law they see necessary to enforce the powers given to them, immigration and naturalization being one of those explicitly stated (if not gleaned from other loosely interpreted Section 8 Clauses, such as the Commerce Clause
Now, this explanation has to do with this particular law because there is federal precedence to back Utah's SB-81. In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which dealt with the way government welfare was distributed. Part of what this act did was "allowed states to set up separate, state-funded programs for legal immigrants" (source
; 2nd to last paragraph). This most definitely increased federalism and states' powers as they pertained to immigration as far as it concerned welfare and other governmental public services.
Then, SB-81 itself states this:
The attorney general shall negotiate the terms of a Memorandum of Understanding between the state and the United States Department of Justice or the United States Department of Homeland Security as provided in 8 U.S.C., Sec. 1357(g) for the enforcement of federal immigration and customs laws within the state by state and local law enforcement personnel, to include investigations, apprehensions, detentions, and removals of persons who are illegally present in the United States...
8 U.S.C., Sec. 1357(g) reads (in part):
...the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law...
You can read the rest of that here
, if you'd really like to.
Basically, that's the U.S. government giving states the go-ahead to enforce immigration standards on their own, so long as they're pals with the feds in doing so.
But beyond the constitutionality of it, what's so wrong with a law that gives a government further powers to enforce an already existing law (that is, that illegal immigrants are just that: illegal)?
Let's look at what the actual law says. To quote a bit/paraphrase, this law does the following:
- "Requires a county sheriff to make a reasonable effort to determine the citizenship status of a person confined to a county jail for a period of time and to verify the immigration status of a confined foreign national"
- Prohibits the issuing of a restaurant liquor license or private club license to an illegal immigrant
- Clarifies in-state tuition benefits for illegals
- The maximum state income tax is withheld from independent contractors who can't prove that their employees aren't illegal aliens
- Identification documents can only be issued to legal U.S. residents (citizens, nationals, etc.) or those whose immigration status is pending (meaning they've gone through the appropriate channels)
- Requires employers to verify their new employees' immigration status
- Prevents an employer from firing a legal resident if they have an illegal resident in the same job position
- Requires the state (any department, agency, etc.) to verify the lawful presence of a person in the U.S. before werf can receive government benefits
- Provides penalties to any agency employee falsely reporting an immigrant's status
- Creates an agency to investigate fraudulent documents and their distributors
- Basically, establish understanding with the U.S. Department of Justice or Homeland Security so as to better enforce national laws
- Prohibits a government agency or organization from prohibiting their employees/officers from communicating or working with the feds
- Makes it a class A misdemeanor to knowingly transport or harbor an alien
So...it's officially illegal to be illegal!
Alternatively, we could have everyone swear by the honor system. "You guys PROMISE that you're legal? Well...okay then, here's some taxpayer money!"
Just in case people think I'm saying that we shouldn't even allow illegal immigrants such basic rights as healthcare, you should be informed that PRWORA essentially states that "Immigrants in the U. S. illegally [are] barred from benefits, except for assistance for medical emergencies" (source
). As far as I know, this law has not been overturned and isn't affected by Utah SB-81, so healthcare in emergencies isn't a huge concern in this issue, as I see it.
(Of course, I fully admit that I could be interpreting all of this entirely wrong, seeing as I'm a former-political-science-hopeful-turned-biological-science major, so I invite someone to correct me if I'm entirely off base. My legal expertise is very limited.)
Again, I'm not a fan of treating other human beings like animals, but I don't think denying someone the ability to live off of the government of a country they don't belong to counts as cruel and unusual punishment. Just sayin', the connection of this to Jews in Nazi Germany, at its very best, on a good hair day after a nice night of beauty sleep, is extraordinarily distant. Heaven forbid that a state requires its residents to show their legality before enjoying the same rights as taxpaying citizens.
There's much more that could be said, but this response is already ridiculously long and I'm late for FHE. If you want to do a bit more reading on the subject, you can check out this
website, or a Google search reveals plenty.