Labor Matters: Immigration Hopes and Dreams

September 11, 2012 11:24 PM

Erich Straub   CopyBy Erich Straub

**Extended comments highlighted in blue.

Just as the summer heated up, immigration law got hot as well, with two significant legal developments.

First, President Barack Obama announced that a class of undocumented immigrants commonly known as DREAMers would qualify for certain benefits under a program known as deferred action.

Second, the U.S. Supreme Court rejected most of the controversial Arizona law known as S.B. 1070, which authorized state enforcement of federal immigration laws and had inspired copycat laws in many other states.

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Although these developments do not provide a direct solution for the immigrant labor crisis in dairy, they are important changes in immigration law that dairy producers should understand.

"DREAMers" are young people who are undocumented and were brought to the U.S. by their parents, usually at a very young age. Many have little familiarity with their country of birth and have been educated in the U.S. for most of their lives. In most cases, they look, sound and act "American" but for the fact that they do not have status. Because most had little or no choice in coming to the U.S., they have garnered a significant amount of sympathy in the otherwise vitriolic debate over immigration reform.

The DREAM (Development, Relief and Education for Alien Minors) Act, which would provide most of them with a pathway to permanent residence and U.S. citizenship, has long had majority support in Congress but has fallen victim to the 60-vote threshold required to move any legislation through the Senate.

In his June 15 announcement, Obama extended "deferred action" to DREAMers. Deferred action is an exercise of prosecutorial discretion whereby the government chooses not to pursue a course of legal action. Stated plainly, that means allowing DREAMers to live and work in the U.S., even though they could otherwise be deported. For those who qualify, deferred action would provide work authorization, a Social Security number and likely a driver’s license.

DREAMers can be as old as 30 and still qualify, so it is possible that there may be dairy workers who are eligible for deferred action, so long as they arrived in the U.S. prior to the age of 16 and have a high-school diploma or G.E.D. It is important to understand that President Obama used his executive powers in ordering deferred action, so it is only a temporary solution. A pathway to permanent residence and citizenship will still require Congress to act.

On June 25, the Supreme Court struck down most of Arizona’s S.B. 1070. The Court concluded that Arizona law was "preempted" by federal law. In other words, it was illegal for Arizona to create a state enforcement scheme in an area that longstanding constitutional precedent has reserved for the federal government.

The ruling was mixed, however, because the Court did not invalidate the part of the law that requires state police officers to check the immi-gration status of a person already in their custody if there is "reasonable suspicion" that the person is in the U.S. unlawfully.

The Court left open the possibility of invalidating this remaining provision if there is future evidence that Arizona is implementing it in a way that demonstrates racial profiling.

Reversal of most of the Arizona law is likely to have several effects that may be helpful to dairy. Beyond Arizona, the Court’s decision is likely to invalidate many of the similar laws in copycat states. Doubts about the wisdom of the Arizona approach had already grown in states such as Georgia and Alabama, where crippling agricultural labor shortages resulted from Arizona-style laws. Coupled with these concerns, the Court’s decision likely deals a serious blow to the immigration "states’ rights" movement.

Of course, neither development solves dairy’s ultimate problem, which is the need for an efficient and reliable visa to match immigrant labor with rural labor needs. Reading the political tea leaves is always risky, but hopefully these two developments will signal the high-water mark for the anti-immigration movement. Unfortunately, only this fall’s election will show how much progress has been made toward eliminating that all-important 60-vote obstacle.

Erich Straub is an attorney and managing partner of Straub Immigration LLC in Milwaukee, Wis.
Contact him at




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