Immigration Policy and the Inalienable Rights of ‘Non-Citizens’

California is about to embrace one of the most progressive state immigration policies in the nation. A bill expected to be signed by Democratic Governor Jerry Brown and legislation enacted earlier this year will expand the rights of non-citizens in ways considered unimaginable a few years ago.

These historic measures will permit certain non-citizens in California to sit on juries, monitor the polls during elections in which they may not vote and even be licensed to practice law. These sweeping changes are among many passed across the nation this year as states have begun to seriously reexamine their immigration policies in the wake of a 2012 landmark Supreme Court decision.

In 2011 Arizona made it a state crime for an illegal immigrant to be in the state without carrying registration documents, authorized state and local law cops and sheriffs to enforce federal immigration laws, and cracked down on those sheltering, hiring and transporting illegal immigrants.  The law was challenged and in Arizona v. United States the U.S. Supreme Court ruled that key sections were preempted, effectively gutting the statute.

State consideration of immigration policy took off in 2013 across all 50 states as well as the U.S. Congress. A total of 143 immigration related bills and 231 resolutions were enacted in 43 states and the District of Columbia as lawmakers got serious about the laws and policies that affect the nation’s estimated seven to 20 million undocumented immigrants. Comprehensive federal immigration reform, S. 744, passed the Senate but remains stalled in the House.

Among the issues considered this year:

  • Driver’s licenses were a legislative priority with 34 laws enacted across 20 states – accounting for 23 percent of all enacted immigration laws during the 2013 sessions. Most of these bills would expand driving eligibility to noncitizens.
  • Seventeen states passed legislation pertaining to public benefits and health benefits for noncitizens. While blue-states tended to expand these programs to noncitizens, red-states were far more likely to veer in the other direction. Similarly, states passed similar legislation that would expand or deny in-state tuition for higher education to noncitizens.
  • Not all legislation was considered progressive. Utah enacted SB 100 which requires applicants for educational scholarships to provide documentation that they are U.S. citizens. Similarly Georgia’s SB 160 requires political agencies to verify lawful presence in the United States prior to receiving any public benefits. Also Indiana SB 538 requirs applicants to provide their social security number on driver’s license applications – effectively barring noncitizens from applying.
  • Delaware, Kansas, Massachusetts, Montana, New Hampshire, Ohio and Wyoming were among the few states that did not address the issue during the 2013 sessions.

As lawmakers prepare for the 2014 legislative sessions it is clear the issue will be hotly debated again. California, which has an estimated three million undocumented immigrations, will serve as both a model for states looking to expand rights to this population, and as an antithesis for those looking to restrict these rights to only citizens.