Arizona Senate Republicans amended border security legislation with language that could harm some immigrants if the federal government or judge ever ends the Deferred Action for Childhood Arrivals, or DACA, program.
The ballot referral from Republican lawmakers would ask voters to approve a new state law criminalizing crossing the border illegally outside of official ports of entry and empower local and state police to enforce that law.
An earlier version of the measure listed DACA status as an affirmative defense, meaning anyone arrested under the proposed law could use their DACA status to argue they are not subject to criminal liability.
But a newer amendment modified that exemption, specifying that DACA status is not an affirmative defense if the federal government cancels the program or a court issues a final order determining the program is unlawful.
Democrats, who staunchly opposed the bill, argued that the amendment is proof Republican lawmakers want to use the law to deport "Dreamers" across the state.
Sen. Priya Sundareshan (D-Tucson) said the provision made the bill “even worse, even more cruel.”
“My question is, I mean, is that seriously the intent of this entire bill to specifically remove or or to specifically target DACA recipients, Dreamers?” Sundareshan said. “People who I thought there was general acceptance to dreamers, who it has been understood are present in the country, through no fault of their own, perhaps had come with parents, they had come as children.”
Sen. Janae Shamp (R-Surprise), who sponsored the amendment, gave a different explanation. She said the amendment is a safeguard, because the state should not have the DACA protections engrossed in a voter-protected state law in the event the program is taken off the books.
“That was the creation of that amendment piece is simply the fact that we already have DACA as an affirmative defense, but there's been plenty of [legal] challenges,” Shamp said.
Republicans also removed sections from previous versions of the proposal designed to blunt concerns that its provisions would provoke fear among migrants.
The original language specifically barred police from enforcing the law if someone is on the grounds of a public or private school, college or university. Also off limits would be arrests at churches, synagogues or other established places of worship. And people could not be taken into custody if they were seeking treatment at a health care facility.
All that is gone.
“That's not needed,” Senate President Warren Petersen said.
“This is just border enforcement at the border,'' said the Gilbert Republican. “So there's no situation that anybody would need to go into any of those things.''
Democrats, however, remain unconvinced.
They said there is nothing in the legislation that limits enforcement to just the border. And they said there also are no provisions to spell out that the law does not apply statewide.
During a procedural vote on Thursday, Republicans in the Arizona Senate adopted the DACA amendment and several other changes, including amendments that lessened criminal penalties associated with violations of the law.
That included removing a requirement that individuals convicted of entering the country illegally must serve at least 30 days in prison and instead allowing a judge to determine the sentence length.
Lawmakers also modified a section of the proposed law that penalizes individuals who knowingly submit false documentation to evade the federal E-Verify system used by employers to verify an employee’s legal status by reducing the penalty from a violation from a felony to a misdemeanor.
Sen. Ken Bennett said he understands the reason to deter people from submitting false papers to employers.
But the Prescott Republican questioned the idea of making it a felony, with the possibility of prison time, on someone who just was looking for work, even albeit illegally. He also pointed out that it is at odds with much of the rest of the legislation which makes it illegal to enter the country other than through a port of entry. That, Bennett noted, is a misdemeanor which not only carries a lesser penalty but also may be a lower priority for county prosecutors.
The amendment specified that individuals who violate that E-Verify law are not eligible for probation, pardon or commutation.
The changes to the law come as business groups, including Greater Phoenix Leadership, have come out against the ballot referral.
And the Arizona Chamber of Commerce, which initially refrained from commenting on the proposal, called on the federal government, issued a statement calling on the federal government, not the Arizona legislature, to pass border security legislation.
“We share the Legislature's frustration with the lack of federal action on immigration and border security,” according to the statement. “We also recognize that lawmaking at the ballot box is fraught with the potential for unintended consequences, and Arizona’s Voter Protection Law would leave the Legislature nearly powerless to address them.”
The Chamber also claimed opponents of the bill would “ascribe to its attributes that were never in the bill,” which would harm the state’s reputation.
The statement also echoed comments from other business leaders and Democrats, saying the Republican ballot referral amounts to an “unfunded mandate” on local law enforcement and the Arizona Department of Corrections, Rehabilitation and Reentry, because it gives them new responsibilities without including new funding sources.
The Arizona Mirror reported that the Grand Canyon Institute estimated the proposal would cost the state at least $325 million every year to enforce.
But Republicans repeatedly pushed back on that claim.
“It cost Arizona $3.2 billion a year to deal with this crisis,” Petersen, the Senate president, said, referring to a report by the anti-immigration Federation for American Immigration Reform presented to the U.S. House Budget Committee.
Howard Fischer of Capitol Media Services contributed to this report.
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