Editorials

New immigration law here; next come legal challenges

South Carolina has its Arizona-style immigration law, and now it must be ready for inevitable legal challenges.

Lawmakers also should be ready to adjust the law should it prove problematic, as some critics predict. That particularly applies to concerns raised by law enforcement officials.

South Carolina joins Utah, Alabama, Indiana and Georgia in following Arizona's lead, and in four of the states, the provisions dealing with law enforcement's inquiry into immigration status have been challenged and blocked -- at least temporarily.

A federal judge in Georgia on Tuesday issued a temporary injunction against that provision's enforcement and against a section that would punish someone who intentionally transports or houses someone in the country illegally. The judge said the state was trying to pre-empt federal law.

Beaufort County Sheriff P.J. Tanner, who also is president of the S.C. Sheriffs Association, has warned that without federal reform, South Carolina's law would burden cash-strapped departments and fill already-crowded jails.

Under the new law, police would be allowed to check immigration status only after detaining a person for another reason. Those whose status can't be determined can't be detained.

Someone found to be in the country illegally is to be turned over to federal immigration officials, but there's no guarantee of cooperation from federal authorities.

The law sets up a new immigration enforcement unit in the Department of Public Safety. The department's director is to negotiate an agreement with U.S. Immigration and Customs Enforcement under the section of the law that trains local agencies on immigration enforcement.

That same mandate was set out for the S.C. Law Enforcement Division when the 2008 Immigration Reform Act was passed. Nothing came of that; SLED officials said lawmakers never provided money for the training that would come after an agreement with federal officials.

The budget sent to Gov. Nikki Haley last week includes $1.3 million for the new unit. We'll have to see whether that's enough to do the job.

One of the key changes to South Carolina's immigration enforcement efforts under the new law is the requirement that employers use only the federal E-Verify program to determine whether an employee is legally eligible to work. Following a recent U.S. Supreme Court decision, the state dropped the ability to use driver's licenses from an approved list of states to verify legal status.

The federal program is voluntary, but the high court concluded that nothing in federal law prevents a state from requiring employers to use it.

But a program set up as voluntary, with its own set of separate rules, may not be the best fit for a state mandate. That issue is illustrated by one of the problems recently worked out between South Carolina officials and the Department of Homeland Security.

Federal privacy rules required businesses not to release information gathered in the E-Verify process. State auditors wanted to review that information as part of the state's compliance checks. Happily for the state, Homeland Security officials have agreed that the information can be released for the state's audits.

But that won't end all the complications for businesses, those who've studied and worked with the program say. Federal law prohibits using E-Verify to screen potential employees; employers can't fire someone immediately if E-Verify comes back with a "nonconfirmation," but it can take months to sort out whether the person is or isn't legally authorized to work. And its accuracy as been called into question. Studies have found that the program incorrectly identifies an illegal immigrant as legal to work about half the time.

The Department of Homeland Security has the discretion to kick an employer out of the program. What happens then in a state where using E-Verify is required?

Some federal lawmakers want to make the E-Verify program mandatory nationwide, but if that happens, how will that effort mesh with existing state laws. In the meantime, E-Verify is set to expire in 2012 unless Congress reauthorizes it.

It all points to the need for a federal solution to a federal problem.

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