There’s been no shortage of attention to the wave of recent laws in Arizona, Alabama, Georgia, South Carolina and elsewhere that have ordered police to check detainees for proof of legal residence, required school officials to check the legality of students’ immigration status and prohibited employers from hiring undocumented aliens and landlords from renting to them. According to the conventional wisdom, it’s Washington that’s ultimately responsible for these draconian laws: The federal government forced local government’s hand by failing to address comprehensive immigration reform. It’s hardly the only explanation—stir in a pinch of racism, a measure of economic fear, and some culture shock and you get a fuller picture—but it’s close enough.
But California has been going in a very different direction, with laws giving undocumented alien students access to financial aid in the state’s public colleges and universities and, more recently, prohibiting state and local governments from requiring employers to use e-verify, the federal system to check on the status of new hires. Now, a bipartisan group of Latino legislators and activists are proposing a voter initiative—the California Opportunity and Prosperity Act (COPA)—that explicitly demands that Washington do more to protect immigrants.
COPA would allow undocumented California aliens who are taxpayers, have no criminal records, have been here four years or more, are not public charges and meet other criteria to apply for formal designation into the tier of illegal aliens who, according to recent Obama administration pronouncements, are given the widest latitude in federal immigration law enforcement. If it passes, the state would request that the Obama administration formally grant waivers to those who qualify—the sponsors of the initiative estimate the number to come to a million or more of California’s 2.5 million illegal aliens—thus protecting them from deportation and detainment.
Not surprisingly, this quickly got California immigration restrictionists like Assemblyman (and former Minuteman) Tim Donnelly frothing. “It essentially asks the federal government not to enforce the law,” Donnelly said—and, in a sense, he was right. The initiative, if it passes, would be asking the federal government to break the letter of federal law.
But it would also be picking up on the Obama administration’s latest statements on immigration policy. Last June, ICE Director John Morton issued a list defining those who are to get the greatest latitude in immigration law enforcement. It’s that list that COPA’s backers are proposing for their program. The Morton memo was bolstered by a subsequent announcement by Secretary of Homeland Security Janet Napolitano invoking “prosecutorial discretion” to effectively exempt from deportation students who were brought to the United States as young children and grew up and went to school here.
Ultimately, COPA is a demand to formalize the government’s implicit promises into explicit protections. In essence it asks Obama, who badly needs to recapture Latino votes, to make Napolitano’s as-yet fuzzy “discretion” and Morton’s list into something that looks like a formal administrative category.
It’s long been obvious that, as it’s currently designed, the law can’t work: Deportation of some 11 million illegal aliens, many of them with citizen children or spouses, is economically and logistically impossible and morally indefensible. Thanks to both tougher border enforcement and the recession, moreover, the number of illegal crossings of the Mexican border, like the number of illegal aliens living in this country, is sharply down—something that administration officials haven’t been shy about advertising but for which Obama gets little credit from latter-day immigration restrictionists like John McCain, who demanded that the border be “closed” (whatever that meant) before they’d discuss comprehensive immigration reform.
It’s hardly certain that the initiative can pass. Even getting the 500,000-plus necessary signatures to qualify for the ballot depends on whether the sponsors can raise at least $2 million to hire the petition circulators. And if it does pass, it will raise yet another round of questions: What if there’s a new administration in 2013? Would those who signed up for the California program, all of them by definition self-confessed illegal aliens, then make easy targets for deportation or other federal sanctions? Yet if it just qualifies, it could, as its sponsors hope, have a significant impact on the 2012 presidential campaign. One of those supporters, Mike Madrid, the former political director of the California Republican Party, is certain that the country is well ahead of Congress—his fellow Republicans especially—on legalizing a large class of undocumented immigrants. COPA, its backers hope, could send a loud signal that Washington should get on with it.
If nothing else, it would be a challenge to Obama, who’s spent the past three years dithering between brave rhetoric about bringing the undocumented out of the shadows and, until recently at least, presiding over an enforcement regime—including a record 400,000 deportations in the past fiscal year—that’s tougher than anything under George W. Bush. The deportations almost certainly cut into the enthusiastic political support from Latinos and other backers of legalization that Obama enjoyed in 2008. COPA and the California laws favoring illegal aliens that preceded it indicate that in the face of Washington’s inaction on immigration individual states could go left as well as right. More important, it makes the need for federal action all the more urgent.
Peter Schrag, the former editorial page editor of the Sacramento Bee, has written about California issues for some forty years. His most recent book is Not Fit for Our Society: Immigration and Nativism in America.