November 5, 2010
Pursuant to Elections Code Section 9005, we have reviewed
the proposed initiative related to immigration (A.G. File No. 10-0023).
Immigration Laws. Federal law (1) specifies
the conditions under which foreign nationals may be admitted to and remain in
the United States, (2) establishes a registration system to monitor their entry
and movement in the country, (3) prohibits the smuggling of "unauthorized
aliens," (4) requires the U.S. Department of Homeland Security (DHS) to respond
to any inquiry from a government agency seeking to verify the citizenship status
of an individual, and (5) prohibits employers from hiring individuals not
authorized to work in the U.S. and establishes a series of escalating sanctions
Federal government agencies are responsible for enforcing
immigration laws. Under agreements with the federal government, however, state
or local government agencies may assist the federal government in its
enforcement of those laws. An agreement with the federal government defines the
extent of the state or local government agencies' enforcement duties and
Verifying Legal Status. Currently, the
United States has no universal national identity card, so verifying citizenship
or legal immigration status can be complex, even for native-born citizens.
Generally, several documents are needed (for example, a U.S. birth certificate
to establish the basis for citizenship and a driver's license with a photo to
establish identity). However, many persons (especially children) do not have a
driver's license or other official photo identification. Documenting citizenship
for these persons may involve additional steps, such as verifying the identity
of a child's parents.
Most legal immigrants have an identification card from
the DHS to verify their status, such as a "green card" issued to immigrants who
are granted permanent residence in our country. However, they are not required
under federal law to have these documents in their possession at all times. The
DHS has developed a computer system that state and local government agencies can
use to verify immigration status, depending on the types of immigration
Undocumented Immigrants in California. The
number of undocumented immigrants currently in California is somewhat uncertain
but has been estimated by the DHS at more than two million. Under the U.S.
Constitution, children born in this county to undocumented immigrant parents are
deemed to be U.S. citizens.
This measure (1) requires state and local law enforcement
officers in California to verify the immigration status of certain individuals
under certain circumstances and authorizes the transfer of undocumented persons
to federal custody, (2) authorizes various state sanctions for employers who
employ undocumented immigrants, (3) establishes state penalties for the
smuggling or transporting of undocumented immigrants, and (4) prohibits state
and local policies that would limit the enforcement of federal immigration laws.
We describe these provisions in more detail below.
Verification of Immigration Status. Under
the measure, when a California state or local law enforcement official has
lawfully stopped, detained, or arrested an individual (for a matter unrelated to
their immigration status), the official must make a "reasonable attempt" to
verify the immigration status of the individual when "reasonable suspicion"
exists that the individual is unlawfully present in the country. The measure
specifies that the immigration status verification of an individual stopped or
detained shall be made in a timely manner at the scene of the stop, except if
the verification would hinder or obstruct an investigation or if the federal
government cannot provide such verification in a timely manner. Similar
exceptions would also apply to efforts that would be required by law enforcement
officials to verify the immigration status of individuals who are arrested and
taken into custody. This measure also authorizes, but does not require, law
enforcement officials to transfer individuals who are determined to be
unlawfully present in the United States to federal custody.
Sanctions for Employing Undocumented Immigrants.
The measure makes it illegal under state law for an employer to employ
an individual who is (1) unlawfully present in the United States or (2) lawfully
present in the country but not authorized to seek or accept employment. Under
the measure, county district attorneys (DAs) would be authorized—after receiving
confirmation from the federal government regarding the employee's immigration
status—to bring criminal charges in superior court against employers found in
violation of this prohibition. The measure authorizes the court to impose a
series of penalties for employers found to have violated these provisions. These
penalties would escalate depending on a variety of factors, such as the number
of such previous violations. For example, depending on the circumstances, the
court could (1) order the employer to terminate the employment of all
unauthorized immigrants and place the employer on probationary status (including
the temporary suspension of all business licensees) or (2) permanently revoke
all business licenses held by the employer at the location of the business where
the violation occurred and impose a fine of $10,000. The measure also requires
the state Attorney General to maintain a publicly available database with
information regarding compliance by businesses with the above provisions.
Penalties for Smuggling or Transporting
Undocumented Immigrants. Under the measure, the smuggling of individuals
for profit or commercial purposes would be a criminal felony under state law.
The measure also makes it a misdemeanor to transport, conceal, harbor, or shield
an undocumented immigrant if a person knows that the individual is in the United
States illegally. It would likewise be a misdemeanor to encourage an individual
to enter or reside in the state illegally. However, under this measure, such a
violation would constitute a felony that could be punishable by 16 months to
three years in state prison if ten or more undocumented immigrants are involved
in the violations. In addition, the measure makes it a misdemeanor to (1) stop a
motor vehicle on a street in a manner that impedes the normal movement of
traffic for hiring and picking-up passengers, (2) enter such a stopped motor
vehicle to be hired and transported to work at another location, and (3) conceal
one's personal immigration status when applying for or per-forming work if the
individual is an undocumented immigrant. Such a violation could result in
incarceration in county jail for up to six months. According to the measure, a
vehicle determined to have been used to transport persons unlawfully in the
United States may be impounded by law enforcement authorities.
Prohibition on Policies Limiting Enforcement of
Federal Immigration Law. The measure prohibits state and local
governments from limiting or restricting the enforcement of federal immigration
laws. Under the measure, a California resident could file a lawsuit in superior
court against any state and local government agency that adopts or implements a
policy limiting or restricting the enforcement of federal immigration laws.
Entities found in violation of this provision would be subject to a civil fine
of $5,000 for each day the policy remains in effect after the violation is
This measure is very similar to a law recently enacted by
the state of Arizona which is currently being challenged in federal court in
several lawsuits on the grounds that it is preempted by federal immigration laws
and violates the Fourth (unreasonable search and seizures) and Fourteenth (equal
protection) Amendments of the U.S. Constitution. Recently, the court issued a
preliminary injunction in one case preventing the implementation of several of
the major provisions in the Arizona law. Some of the provisions of this proposed
California measure could be subject to similar legal challenges. Thus, if voters
enacted this measure in California, its fiscal impact would be subject to
significant uncertainty. Even if this measure were found to be constitutional,
there could be significant variations in how some of its provisions were
implemented by law enforcement officers and county DAs across the state.
Assuming its provisions were fully implemented, the
measure could have the following fiscal effects.
Possible Impacts on Public Services and the
Economy. To the extent that the measure reduced the number of
undocumented immigrants living or entering the state, it could result in
significant savings to state and local governments for reduced services and
benefits provided to un-documented immigrants. The measure could ultimately
reduce costs for kindergarten through twelfth grade and higher education, as
well as for various health and social services administered at the state and
local levels. This includes certain services provided through the Medi-Cal
health care program for the poor. Eventually, costs might also decline for cash
assistance provided to the citizen children of undocumented immigrants
participating in the California Work Opportunity and Responsibility to Kids
program. In addition, state prisons and county jails house un-documented
immigrants who have been arrested or convicted of crimes in California, costs
that might decline over time if this measure caused their numbers in the state
to decline. Collectively, state and local government costs related to
undocumented immigration range in the several billions of dollars annually.
A decline in the number of undocumented immigrants in the
state would also have adverse impacts on the labor force, production, personal
income, and other revenue-related economic variables, such as taxable sales.
This would include the reduced employment of not only undocumented immigrants,
but also of others whose employment is facilitated by such immigrants, such as
wage earners who depend on child care and other services. This could be
partially offset by other factors. For example, a reduction in the number of
undocumented workers could have the effect of shifting some income from the
"underground economy" to the regular economy, resulting in a larger share of
activity that is taxed.
These impacts—both cost savings and reduced
revenues—could be significant. The net fiscal effect of these various cost and
revenue factors on the state and local agencies, however, is unknown.
Increase in State and Local Criminal Justice System
Costs. The measure could increase criminal justice costs in a variety of
ways. Most significantly, it could increase state and local costs for
enforcement of immigration-related offenses and the handling of related cases in
the court system. These would include costs to provide specific training to
officers on what legally constitutes reasonable suspicion regarding an
individual's immigration status and how to verify the immigration status of
individuals in such situations. In addition, to the extent that the measure
resulted in additional felony and misdemeanor arrests, prosecutions, and
convictions, it would increase costs for the state prison and parole systems, as
well as for county jails and probation departments. The measure would also
result in annual state costs for the state Attorney General to create and
maintain the employer database required in this measure.
The overall impact on criminal justice costs is difficult
to estimate as it would depend on future actions by state and local officials.
These increased costs, however, could easily be in the tens of millions of
dollars annually. It is also possible that state and local governments would
redirect resources away from other activities to accommodate additional workload
resulting from the measure.
Increase in State and Local Revenues. The
measure could increase state and local revenues from the collection of the fines
it establishes. The state and local agencies could also derive revenues from the
impounding of vehicles used for smuggling. The magnitude of these potential
revenues is unknown and cannot be estimated at this time.
Administrative Costs for Licensing Agencies.
This measure would result in probably minor administrative costs for state
and local agencies that license businesses. This would occur in cases in which
the courts ordered a state or local agency to suspend or permanently revoke the
licenses of a business found under state law to have illegally hired
Summary of Fiscal Effects
The measure could have the following major fiscal
effects, depending on whether its provisions are upheld by the courts and how it
Potentially significant cost savings in services
provided to undocumented immigrants by state and local governments and
reductions in state and local revenue to the extent this measure reduces the
number of undocumented immigrants in the state. The net impact of this
factor is unknown.
Increased costs to the state and local criminal justice
system, potentially exceeding tens of millions of dollars annually, from the
arrest, prosecution, and detention of violators of the provisions of the
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