Thread: IN: Racial profiling or taking the lead on immigration?

January 24, 2008
Racial profiling or taking the lead on immigration?
10-1 vote sends bill that ignites passions to full Senate
By Dan McFeely
dan.mcfeely@indystar.com
January 24, 2008

Opponents of a tough new illegal-immigration bill say Indiana will be treading on constitutionally dangerous ground if it becomes law.
The bill, they say, would promote racial profiling and infringe upon the constitutional rights of U.S.-born children whose illegal-immigrant parents lose their jobs.

But supporters say the bill -- approved 10-1 in a committee vote Wednesday and ready for consideration by the full Senate next week -- will send a message to the federal government that it has not done enough to stem the flow of illegal immigrants.

"Our message today to the federal government is to lead, follow or get out of the way," said Sen. Mike Delph, R-Carmel.

Delph championed the bill through the Senate Pensions and Labor Committee, which heard testimony Wednesday at a hearing that drew a crowd of more than 50 people, a mix of Hispanics and business lobbyists opposed to the legislation. The full Senate could take up the bill as early as Monday.

"Today is a reflection of the strong sense that people want the illegal-immigration problem resolved once and for all," Delph said.
But at what cost?

Louis R. Moffa, a nationally regarded immigration lawyer from New Jersey, testified that Indiana lawmakers cannot pass a potentially unconstitutional law just because they don't believe the U.S. government is doing its job. He is making a similar argument in federal court as a lead attorney fighting similar legislation adopted by Arizona.

"There are cases that are proceeding right now, and the appellate courts will make the law in this area. So I urge caution, more thought and more discussion," said Moffa, whom Delph invited to testify, along with another national expert who supports the bill.

Mike Cutler, a former federal immigration agent from New York who often testifies for tough immigration laws, said, "This is a matter of criminal justice." He said Indiana could be considered a border state because of Indianapolis International Airport.

"When they come here, it is just like breaking into our house," he said.
Senate Bill 335 calls for stiff penalties for employers who hire illegal immigrants, punishing them through a series of sanctions that could ultimately lead to the revocation of their business licenses. It calls for the state attorney general's office and local prosecutors to investigate written complaints about such activity. The bill also would make it a criminal act to transport or aid an illegal immigrant.

An amendment was approved to push back the legislation's effective date from July 1, 2009, to Oct. 1, 2009. Also, exemptions from prosecution were added, including churches.

Indianapolis immigration lawyer John Broyles spoke at length against the bill, warning that "blatant racial abuse" would result from a law that compelled employers and citizens to file complaints about workers possibly here illegally. Such complaints, he said, more than likely would involve racial profiling, deemed unconstitutional by the Supreme Court.
"I cannot tell you if those people who cleaned my offices last night, nor can I tell you if the young girl who served me coffee this morning, are here legally or illegally," Broyles said. "This bill will not withstand a constitutional challenge."

After nearly three hours of testimony Wednesday, only one senator voted against the bill.

Sen. Greg Walker, R-Columbus, said he voted against it because he was concerned about the rights of children of illegal immigrants who, if born in the United States, are natural citizens. Targeting their mothers and fathers with the new law, Walker said, would infringe on their rights.
"That is my conscience, and that is my reasoning," Walker said. "Their children are natural-born, and they are citizens according to the 14th Amendment. I still think this is a constitutional question that keeps it out of our jurisdiction."

Gavin Rose, an attorney with the American Civil Liberties Union of Indiana, agreed that the state should consider the plight of those children who rely on illegal immigrants for their support.

"The effect of SB 335 would be to leave these citizens, these native Hoosiers, with absolutely no ability to obtain life's necessities," Rose said.
Legislators, however, have said constituents tell them illegal immigrants are a drain on their tax dollars, a channel for illegal drugs and a matter of national security.

"This bill is not intended to be racist or to drive people out of our country," said Sen. Jim Arnold, D-LaPorte, who voted for the bill. "It is designed to be a welcoming bill" for those who want to come here legally.

Marion Superior Court Judge Jose Salinas disagreed.

"This isn't Hoosier hospitality," Salinas testified.
"I will enforce this law in my position . . . but when little kids and families go without food when we enforce the rule of the law, then something is wrong with that rule of law."
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HIGHLIGHTS OF THE BILL

Senate Bill 335, targeting employers who knowingly hire illegal immigrants in Indiana, would allow the attorney general's office and local prosecutors to investigate written complaints of such practices. An employer who is found to have violated the law would be punished based on a three-tier system:

• The first offense would draw a warning.

• A second offense, if committed within 10 years, would result in a suspended business license.

• A third offense within 10 years would lead to a revoked business license.

Businesses would verify the status of their employees through the federal employment verification pilot program, E-Verify.

The bill also would make it a Class A misdemeanor to transport, shield from detection, conceal or harbor an illegal immigrant for commercial or financial gain. The bill provides exemptions for medical services, religious organizations, attorneys and parents, spouses or children of the illegal immigrants.

THE CONSTITUTION SAYS...
Critics of the illegal-immigration bill say targeting the parents of children born in the United States -- children who are legally natural-born citizens -- would deprive them of protections spelled out in the 14th Amendment.

Here is what that amendment says:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

WHAT'S NEXT
The bill now moves to the full Senate for consideration. It must be approved by Wednesday in order to be sent to the House for consideration.
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