Oklahoma has enacted a law threatening to “fine and jail migrants who are in the state without legal documentation,” NBC News reported on May 22, 2024 (read story here; see the law here).
That it’s a bad law goes almost without saying. (What good comes from Republican legislatures?) But is it legal?
“The bill is the latest move by a Republican-run state to try to take immigration matters into its own hands,” NBC News says. The Justice Department immediately sued the state, asserting federal preemption (read the complaint here).
The Constitution didn’t give the federal government exclusive control over immigration; that was established in a series of Supreme Court decisions beginning in the late 19th century, and made explicit in a 1941 case (details here). For a list of things states are allowed to do in the immigration realm (e.g., denying welfare benefits to illegals), go here.
Okay, so that’s the broad outline of immigration law as it presently exists, but we can’t be sure a partisan Supreme Court won’t upend it, which Oklahoma legislators may be banking on.
Now let’s look at some specific provisions of the Oklahoma law beyond the preemption issue. Quoting NBC News (these are NBC‘s words, not wording from the law),
” … noncitizens commit an ‘impermissible occupation’ when they enter the state without having permission to be in the U.S. and gives law enforcement authority to arrest and jail them.
” … states it will protect the health, safety, welfare and constitutional rights of the state’s citizens and that immigrants in the U.S. illegally could pose potential harm to residents.
“A first conviction would be a misdemeanor punishable by up to a year in county jail and a $500 fine. A second conviction would be a felony carrying a sentence of up to two years in county jail and a $1,000 fine.”
Without question this law makes it a crime simply to be an illegal in Oklahoma. This is what’s known as a “status” crime, i.e., not based on behavior, but on a characteristic or condition. In this case, the characteristic is immigration status.
Status laws usually don’t survive in the courts. For example, the Supreme Court struck down California’s attempt to make merely being a drug addict (as opposed to using drugs) a crime (details here).
Recognizing this vulnerability in its law, the Oklahoma legislature tried to skirt it by declaring illegals “commit an impermissible occupation” of the state by being in the state. This is a lame attempt to characterize physical presence as an act or behavior, but mere presence is a status.
Moving to the next issue, states often preface laws with a “health and welfare” statement similar to the one above. This is a legislative finding, which isn’t law per se, but describes the purpose of the legislation, which can help courts interpret it.
Studies show illegals have a lower crime rate than citizens, but “harm” can be interpreted more broadly, such as taking jobs away from citizens or burdening the state welfare system, so we can’t say the law is based on a false premise, and that wouldn’t invalidate it anyway. Legislatures can enact good laws for bad reasons.
What Oklahoma can’t do, however, is prosecute anyone for “potential” harm. It has to wait until a crime is committed. Laws, of course, can seek to prevent future harm, but not by making its possibility or potential a present crime.
Finally, Oklahoma isn’t just trying to regulate the presence of illegals; imposing criminal penalties makes it a crime, not a subject of regulation.
Given history, it’s ironic that Oklahoma is trying to keep illegals out. During the Depression, California tried to shut out Dust Bowl migrants from Oklahoma known as “Okies.”
Police set up roadblocks, described here and depicted in “Bound for Glory,” a biopic about folksinger Woody Guthrie; and legislators made it a crime to bring indigent nonresidents into the state, which the Supreme Court struck down (details here).
If Oklahoma can do keep out illegals, who will be next, refugees from California’s crowding and expensive housing?
Photo below: Are these migrants from California?
