Democrats in the state legislature want to make it illegal for Colorado to assist with the creation of a Muslim registry, internment camps or any other efforts to identify and detain people based on race, ethnicity, national origin or immigration status.
The first question that comes to mind is whether this is a symbolic act in response to hyperbolic rhetoric. At least one law professor doesn't think it's abstract it all.
"We're not talking about (registries) because they've been used in terrible ways in 100 different countries, though they have. We're talking about them because we've used them in this country," said Christopher Lasch, a professor at the University of Denver's Sturm College of Law who has worked on civil rights and immigration issues.
HB 1230, Protect Colorado Residents from Federal Government Overreach, also known as the Ralph Carr Freedom Defense Act, would prohibit the state itself and cities and counties within Colorado from:
- Providing the race, ethnicity, national origin, immigration status or religious affiliation of a Colorado resident to the federal government, unless it was "for a legal and constitutional purpose,"
- Helping the federal government create or maintain a registry for the purpose of identifying Colorado residents based on race, ethnicity, national origin, immigration status or religious affiliation,
- Helping the federal government in marking or otherwise placing a physical or electronic identifier on a person based on race, ethnicity, national origin, immigration status or religious affiliation,
- Using state or local lands or resources or otherwise helping the federal government in interning, arresting or detaining a person based on his or her race, ethnicity, national origin, immigration status or religious affiliation.
There's a hearing on the bill scheduled for Thursday afternoon before the House Judiciary Committee. In some ways, this is the counterpart to a Republican-sponsored bill that would have allowed private citizens to sue cities and counties that don't cooperate with federal immigration authorities and pursue so-called "sanctuary" policies. That bill died in committee. Both reflect the broader national debate over immigration enforcement and how Colorado will respond to changes in Washington.
This bill is sponsored by state Rep. Joe Salazar, who has announced he's running for attorney general, state Rep. Daneya Esgar of Pueblo and state Sens. Lucia Guzman of Denver and Daniel Kagan of Cherry Hills Village, all Democrats.
Ralph Carr is, of course, the Republican governor of Colorado who resisted the internment of Japanese immigrants and Japanese-American citizens ordered by President Franklin Delano Roosevelt during World War II -- at the expense of his own political career. He's one of Democrats' favorite principled Republicans during the era of President Donald Trump.
Korematsu vs. United States, the infamous Supreme Court decision that upheld internment policies, has never actually been overturned, though many legal scholars argue -- as Noah Feldman did recently in an op-ed in the New York Times -- that it shouldn't be treated as binding precedent.
Lasch said the language used by the majority in that decision feels eerily similar to rhetoric used today. They said that internment would be wrong if it were motived by racial prejudice, but it was not. Rather it was a function of wartime necessity.
In his dissent, Justice Robert H. Jackson argued that the ruling validated racial prejudice in criminal procedure and for the sake of national security: "The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."
"Is this an over-reaction? Is this screaming fire in a crowded theater?" Lasch said of the Ralph Carr Freedom Defense Act. "If you look at FDR's executive order 9066, which is what made Japanese internment a reality, and you look at the Supreme Court decision in the Korematsu case, which upheld the constitutionality of the order, people would be astonished to discover just how precarious our commitment to civil rights can be in this country. Literally all it takes is a signature on an executive order, and this machinery gets put in place."
"It is very tempting for people in 2017 to say that couldn't happen here now," he added. "I think the Salazar bill takes a different view, which is that everything we saw in the election says that this is a president who could take us down that path."
More recently, after the Sept. 11, 2001, terrorist attacks, the United States created the National Security Entry-Exit Registration System, or Nseers, program that subjected male immigrants from a number of Muslim majority countries to additional scrutiny and questioning. Thousands of men who complied with the registry requirements were deported, those who didn't comply faced criminal and civil penalties and the program had long-term consequences for the green card-prospects of men from those countries. It was discontinued in 2011 largely because it was seen as ineffective, and former President Barack Obama formally disbanded it on his way out of office so that its machinery would not be available to Trump.
The bill would not change anything that Colorado law enforcement does now. County sheriffs would still share fingerprints with the FBI and the Department of Homeland Security, which checks the names of those who have been arrested for possible immigration violations and security concerns. That program has been found to be lawful, and the bill doesn't stop Colorado from sharing information in ways that are lawful.
But Denise Maes, public policy director of the Colorado chapter of the American Civil Liberties Union said it would prevent local law enforcement from being "deputized" to enforce immigration law, as Attorney General Jeff Sessions and President Trump have proposed.
"Some people will say, 'Oh, this bill goes too far, these things are not going to happen, we're not going to have internment camps in the state of Colorado,'" she said. "And I get that. In that respect, maybe some of this is symbolic. ... Some of these new executive orders -- deputizing local law enforcement, that is permissible -- this bill is saying even though it is permissible, we're not going to allow it in the state of Colorado. It is an important statement to make, but it's also a likely thing to occur because we've seen statements out of the administration that that is what they want to do."
Gov. John Hickenlooper has repeatedly said he doesn't consider immigration enforcement a priority of state and local law enforcement, that that responsibility lies with the federal government.
He said his office needs to review the bill carefully for unintended consequences, but "the notion that we would ever have internment camps again in this state is not something anybody wants."
And he downplayed the possibility of large-scale deportations of illegal immigrants.
"When I was in the White House with President Trump, with 40 other governors, he shook his finger like this and said, 'We will not not arrest and deport millions of people without serious criminal activity.' I take him at his word," Hickenlooper said.
Maes said she hopes Republicans don't take the bill as an "anti-Trump" measure.
"I don't see it that way," she said. "I see it as an important guard rail."
