ILLEGAL IMMIGRATION:
A COMPREHENSIVE SOLUTION

Citizens across North Carolina and the country are increasingly concerned about the impact of undocumented immigrants and the drain they cause on our financial resources. There has been a lot of discussion during this campaign about steps to address illegal immigration such as the 287(g) program, which gives immigration policing authority to county sheriffs, and various concepts to improve identification cards. These programs are necessary and we must act decisively to get them implemented, but they are unfortunately only partial solutions and fail to address the two primary problems we face: 1) the failure of the Federal Government to secure our borders and efficiently and thoroughly remove people who are here illegally; and 2) the necessity of North Carolina and other states to fund the costs associated with illegal immigration.

 There is no doubt that the cost of services provided to illegal immigrants by our state and local governments outweigh tax revenues that illegal immigrants generate. This fact was most recently substantiated in a December 2007 Congressional Budget Office report. Perhaps more important, the report’s authors nicely summarize the inherently unfair nature of immigration policy in the US by pointing out that illegal immigrants are prohibited by law from receiving nearly all federal benefits, and required by law to receive the state provided services of education, health care, and law enforcement. This is an injustice that we can no longer tolerate.

 It’s time we took bold, aggressive steps to force the issue with the Federal Government and hold accountable those responsible for the costs of illegal immigration borne by the taxpayers of North Carolina. If the Federal Government will not perform its constitutional responsibilities for handling immigration, then our taxpayers are entitled to reimbursement for the costs associated with educating illegal immigrants, providing them healthcare, and incarcerating them.

What do Illegal Immigrants Cost
North Carolina Taxpayers?

 Any discussion of the net cost of illegal immigration to the state must begin with the disclaimer that we simply cannot precisely estimate these costs at this point because there are few if any mechanisms in place to account for money spent on services for illegal immigrants. Regardless, we can use some studies conducted in the past few years to make an estimate of the scale of the problem.

Most studies dealing with the net costs of illegal immigration consider three cost categories: public education, healthcare, and criminal justice. There are approximately 40,000-65,000 children of illegal immigrants in our public schools, which drive up state and county operating budgets, increase capital outlays for new construction, renovation, expansion and maintenance, and create a requirement for additional special services and staff.

 Our public community hospitals currently deliver emergency care to illegal immigrants in accordance with federal law. While some of the costs of this care are covered by federal Medicaid, patient-support and outreach programs plus uncompensated care (also known as charity care) costs are paid by NC taxpayers. Without a statewide accounting of patient-support and uncompensated care costs by resident status, which does not occur, we cannot know how much is spent on these services each year across North Carolina’s 45 public hospitals.

Criminal justice costs are largely associated with the requirement to investigate and prosecute crimes committed by illegal immigrants and then incarcerate those found guilty. It is important to note that these individuals are not deported immediately, and the Federal Government may take custody for deportation, but only after they have completed their sentences. Therefore, North Carolina not only bears the administrative costs of prosecution, but must pay to keep these criminal aliens in our jails and prisons.

  Given these cost categories, and considering a number of studies conducted over the past decade, it is likely that the net cost of illegal immigration to North Carolina is at least $300 million and could be closer to $500 million per year. While we can ultimately determine the direct cost of illegal immigration, we will never be able to determine the full cost to our citizens of the Federal Government’s failure to meet its responsibilities. We will never know how much more the children authorized to be in our schools could have accomplished had our full education resources been devoted to them. We will never know the full costs borne by the victims of crimes committed by illegal aliens. Our efforts to get reimbursement for North Carolina’s taxpayers will not make up for these indirect costs of illegal immigration, but it is the least that state government can do.

Providing Relief for Our Taxpayers: A Four Step Plan

 Whether North Carolina taxpayers pay an additional $300 or $500 million or even more to provide services for people who are not in our state legally is at this point unknowable, because we don’t have any idea who is here illegally. So the first step is to establish an identification process to verify legal residence:

• Review and revise as necessary the Division of Motor Vehicles identification process for issuing a driver’s license to ensure that only legal residents are licensed;

• Review and revise as necessary the North Carolina Identification card process (also administered by the Division of Motor Vehicles) to ensure only legal residents may obtain state identification cards;

• Utilize the latest technology to ensure driver’s licenses and identification cards are as tamper-proof as possible.

As we are taking the actions necessary to tighten the identification process, we can put procedures in place to accomplish the second step, which is to document as thoroughly as possible how much the state is spending to provide education, healthcare and law enforcement services to illegal immigrants:

• Education: verification and documentation of a students’ residency status must be accomplished on enrollment (which is essentially no different than what is required for any student entering our school system). We must implement a system for the school districts to report this information to the Department of Public Instruction for a statewide roll-up;

• Healthcare: implement a system for public hospitals to record and report residency status of individuals whose treatment falls into the category of uncompensated care. Public hospitals should also provide an accounting of money spent for patient-support services that are required to adequately serve the immigrant population in their area;

• Criminal Justice: implement statewide the pilot program that US Senator Elizabeth Dole has coordinated with the federal Immigration and Customs Enforcement agency under section 287(g) of the Immigration and Nationality Act. This program provides training for sheriffs’ departments to perform immigration law enforcement functions and also presents the opportunity to expand 287(g) authority to local correctional and county correctional facilities. With the authority and database access provided by this program, we will be able to account for the costs incurred incarcerating all criminal aliens. These costs, along with all administrative costs incurred through implementing 287(g) that are not covered by the Federal Government, must be consolidated at the state level.

• Department of Revenue: audit state income tax returns and adopt an accepted model to estimate tax revenues received from illegal immigrants to provide revenue estimates to determine net costs.

 Certainly it will take some time to get the legislation passed and implement these reporting programs and determine the annual net costs to our taxpayers of illegal immigration. This is an effort we must make as soon as possible to take the third step, which is to aggressively pursue reimbursement through established federal law, and then petition the Federal Government for reimbursement for all costs net of reimbursements. This would include:

• Investigate opportunities for education reimbursement through the US Department of Education (No Child Left Behind and Individuals with Disabilities Education Acts);

• Request a Department of Homeland Security grant to fully implement the North Carolina 287(g) program;

• Request full payment for uncompensated emergency care for illegal immigrants under Section 1011 of the Medicare Modernization Act;

• Request full payment for incarceration of illegal immigrants through the US Department of Justice State Criminal Alien Assistance Program (felony convictions only).

 Finally, based on our experience with the reimbursement programs listed above, and considering the relevant history, (more on that below) we would expect that the Federal Government will largely ignore our claims for financial relief. If our requests are denied, then we must take the final step. I will direct the North Carolina Attorney General, in coordination with other states’ Attorneys General, to pursue every legal recourse to secure reimbursement for our taxpayers, including bringing a suit against the US Government in federal court.

An Unfair Mandate from our Leaders in Washington

 Nowhere is the impossible and unfair nature of the requirements imposed by the Federal Government on the states more clear than in public education. The responsibility to provide a free education to illegal immigrants in the pre-K through 12 public school system was imposed on the states by the US Supreme Court in the 1982 case of Plyler v. Doe. That 5 – 4 decision held a Texas statute unconstitutional that attempted to prohibit illegal immigrants from attending Texas public schools.

 It is important to note that the concurring opinion of Justice Lewis Powell, who was the deciding fifth vote, provides the basis for our reimbursement claim. Justice Powell writes:

In reaching this conclusion, I am not unmindful of what must be an exasperation of responsible citizens and government authorities in Texas and other States similarly situated. Their responsibility, if any, for the influx of aliens is slight compared to that imposed by the Constitution on the Federal Government. So long as the ease of entry remains inviting, and the power to deport is exercised infrequently by the Federal Government, the additional expense of admitting these children to public schools might fairly be shared by the Federal and State Governments. (emphasis added)

 Thus, the deciding fifth vote at the US Supreme Court 26 years ago recognized the implicit obligation of the Federal Government to share the costs for the failure to comply with its Constitutional responsibility. For the past 26 years the situation has become increasingly worse and the implications of the Federal Government’s failure have steadily expanded. Our position is clear and justifiable: “the ease of entry remains inviting,” the Federal Government rarely exercises the power to deport; and sharing of education expenses is the only fair solution.

Prevailing in Court: A Challenge Worth Talking On

           I firmly believe that now is the time for us to push the Federal Government on this issue. A number of states brought law suits in the mid 1990s under a variety of different constitutional and statutory theories claiming the legal responsibility of the Federal Government to reimburse them for the costs associated with illegal immigrants. Unfortunately those suits were unsuccessful.

 So, why do I think a renewed round of litigation might be successful? First, over 15 years have has passed with the Federal Government continuing to fail to live up to its Constitutional obligation. Circumstances have become increasingly worse here in NC and across the nation. Most importantly, the US 4^th Circuit in which NC is assigned has not yet ruled on a similar case and none of the previous cases ever reached the US Supreme Court.

 If the Federal Government refuses our request for reimbursement would litigation be successful this time around? I don’t know. What I do know is that if we sit idly by and allow the Federal Government to ignore the burdens being placed on our State, then we can rest assured little if anything will be done by Washington to help us. I believe that the legal talent in our state Department of Justice working with their colleagues around the country can put together the factual circumstances and legal theories necessary to take this case all the way to the US Supreme Court and prevail. And in the meantime, it will further pressure Washington to start fulfilling its responsibilities when it comes to immigration and the impact illegal immigration is having in the states of this country.

 While proposing to sue the Federal Government should be a last resort, unfortunately that time has now come. The illegal immigrant population in North Carolina has nearly tripled in the last seven years so this problem is not going away. We must implement a comprehensive solution to get some relief for our taxpayers. Otherwise, we can just keep complaining and protesting and paying the growing costs of the services we provide the illegal immigrants in our state.

GO TO:
A Comprehensive Solution
What Do Illegal Immigrants Cost NC | Providing Relief for Taxpayers
An Unfair Mandate from Washington | Prevailing in Court

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