SALT LAKE CITY - In the aftermath of the Arizona immigration debate over SB 1070, Utah is considering a state-run guest worker program that could be struck down in court.
At Utah Gov. Gary Herbert's recent immigration summit, leaders examined two options: Arizona-style enforcement or a Utah-specific guest worker card.
But it was Nevada Lt. Gov. Greg Bell, an attorney, who got to the heart of the matter: "I'm very intrigued about this guest worker idea, but is there any system that Utah could adopt for allowing guest worker status ... without a federal action taking place?"
While the courts ultimately will decide the fate of Arizona's law, several Utah immigration lawyers say a state-run guest worker program would be almost certain to be struck down as an unconstitutional overreach.
"In this instance, what we're trying to create is something that is totally unfathomable," said Roger Tsai, chairman of the Utah Chapter of the American Immigration Lawyers Association.
"If we, as a state, are saying this person from, say, El Salvador, is allowed to come to Utah, but is not allowed to be in the United States, it obviously doesn't make too much sense and would undermine the United States' sovereignty," Tsai said
Various ideas for a Utah guest worker programs are being floated by the Salt Lake Chamber of Commerce, the Sutherland Institute and several legislators, including Sen. Howard Stephenson, R-Draper.
Under the proposals, Utah would grant some legal work privilege to workers. The employer would post a bond for each worker, who would be required to pass a background check and health screening.
"It sounds like a fantastic idea. We need a guest worker program," said Christopher Keene, an immigration attorney. "I just don't know how the state can affect immigration laws and grant some type of status to these folks because under the federal law the folks still wouldn't be working (legally)."
Ron Mortensen, a member of the Utah Immigration Coalition, which opposes illegal immigration, said there would be no way for Utah to get its guest workers into the state legally without federal government cooperation.
"If Utah had a Utah visa and, say, I gave it to some guy up in Canada, he arrives at the border, what is the customs and immigration guy going to do with that visa? He's going to laugh in his face," Mortensen said.
"I don't see how you pull that off without running crosswise with the feds every time you turn around," he said.
In Arizona, the U.S. Justice Department has argued that state's law requiring local law officers to enforce immigration laws would create a patchwork of state immigration policies and would be untenable. A federal judge on Wednesday blocked that portion of the law from taking effect.
Then there is the cost of running a Utah guest worker program.
Tsai said it would require a structure parallel to the federal system to process applications, conduct background checks and punish violators.
Wesley Smith, director of public policy for the chamber, is fully aware that there are pitfalls in trying to formulate such a program.
"You have to be very careful when you craft legislation in this area because the reality is that this is a big area of federal government control," Smith said.
Indeed, the chamber's proposal is heavily dependent on Utah getting federal waivers that would allow it to run a guest worker plan. In 2009, the Utah legislature and governor passed a resolution urging Congress to grant Utah a waiver to run a guest worker program, but no action has been taken since.
But Smith said the program is still worth pursuing.
"There's some really creative solutions that are being talked about out there about how to make this work," he said.
Smith said the chamber's proposal could be designed so that employers participating bear the administrative costs. And it would be mainly aimed at helping those individuals already in the state, he said, rather than bringing in new migrant workers.
Rep. John Dougall, R-Highland, argues that during the first 100 years of the country the states were responsible for immigration policy. Today they bear the brunt of the impacts of immigration, and they should take a leadership role.
"Given where we are today (the states) can't do any worse," he said.
Even if courts end up striking down a Utah guest worker plan, Dougall says, the state shouldn't shy away from the fight.
"Utah needs to create the framework, they need to push hard down that path. Maybe at the end of the day Congress wakes up. ... Maybe we end up in court and we have a battle in court. But we can't just tread water doing nothing," he said.