- The Washington Times - Tuesday, May 3, 2011

A year after suing Arizona over its tough immigration law, Attorney General Eric H. Holder Jr. told Congress on Tuesday that his department is prepared to sue Utah for going the other way and creating its own guest-worker program - though he is giving the state some time to change its law.

“That’s a law that doesn’t go into effect until 2013,” Mr. Holder told the House Judiciary Committee. “We will look at the law, and if it is not changed to our satisfaction by 2013, we will take all the necessary steps.”

Utah Gov. Gary R. Herbert earlier this year signed a package of immigration bills, including one to enhance enforcement, similar to but not as far-reaching as Arizona’s law, and another that tries to create a guest-worker program and protect illegal immigrants from arrest.

The enforcement law is already being challenged in court by civil rights groups, and Mr. Holder said if the guest-worker law doesn’t change he will challenge it, too, for infringing on the federal government’s right to control immigration policy.

Mr. Herbert’s office didn’t respond to a message seeking comment, but Utah Attorney General Mark Shurtleff told The Washington Times that he has had several meetings with Justice Department officials to talk about ways to bridge the gap between Utah’s law and Mr. Holder’s stance.

“I am pleased to see he did say we had two years,” Mr. Shurtleff said. “We’re working with them. I feel like they’re open to ongoing discussions.”

Utah’s move this year to pass a state-level guest-worker program shook the immigration debate, since it came from a conservative-leaning state where immigration enforcement is popular and where politicians regularly label federal guest-worker plans as “amnesty.”

Under the plan, illegal immigrants living in Utah could apply, pay a fine and be issued a work permit.

Immigration-rights advocates said it marked a reversal from the trend of enforcement-only policies pioneered by Arizona.

The guest-worker program poses a test for Mr. Obama and his administration, which quickly moved to block Arizona’s enforcement effort, but has yet to take action on Utah’s law, which more closely matches his own proposals on how to address immigration.

On Tuesday, Mr. Obama held a meeting with top Hispanic Democrats from Congress, at which he talked about trying to pursue a broad immigration bill that would include legalizing most illegal immigrants.

Mr. Holder said he has read the Utah law - unlike Arizona, where he first criticized the law, but had to acknowledge he hadn’t actually read it. He said he sees issues with the law, but hopes by 2013 that “there might be some way that we can work our way through those concerns without having to bring a lawsuit.”

Judiciary Committee Chairman Lamar Smith, Texas Republican, told Mr. Holder that he doesn’t see how the Utah law can be squared with the administration’s stance on states and immigration.

“It would seem that it’s unconstitutional, or at least it’s suspect on its face because you have a law that professes to give legal status to people in the country who are here illegally,” he said. “I don’t know how you work that out, and it seems to be a clear violation of current immigration law.”

Mr. Shurtleff, Utah’s attorney general, said the law is written with the understanding that it will require either a change in federal law, or the issuance of some sort of waiver, if it’s ever to work.

He said that could come either from the Justice Department, which could use prosecutorial discretion to not target employers who hire illegal immigrants using Utah’s program, or from the Homeland Security Department, which could defer action on deporting illegal immigrants.

Mr. Shurtleff said neither Justice nor Homeland Security officials have the resources to go after all illegal immigrants or all employers who are hiring them, and he said it would be natural for the government to announce it was placing a lower priority on those people trying to comply with Utah’s laws.

He also took issue with lawmakers such as Mr. Smith who criticize the state’s laws while failing to pass a solution at the federal level.

“For him to wag his finger at us is just infuriating. Put up or shut up, congressman,” Mr. Shurtleff said.

In the Arizona case, the Obama administration argued that states do not have leeway to enact their own immigration systems.

The Justice Department’s lawsuit against Arizona is still winding its way through the federal courts.

A district judge tossed out key parts of the law last year, and an appeals court upheld that ruling last month. Arizona Gov. Jan Brewer is currently debating whether to appeal to the full 9th U.S. Circuit Court of Appeals or take it directly to the Supreme Court.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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