N.C. House Bill 63 was approved by the House Judiciary II Committee, clearing its first major legislative hurdle.
The final vote was 6-5, reflecting the controversy that has surrounded the bill since it was filed in early February. Tuesday was the third time the Judiciary committee has taken up the bill. Each time experts on immigration law and civil liberties advocates argued against the bill, which also faced scrutiny from both Democratic and Republican members of the committee.
More than a dozen members of the public came to speak again at Tuesday’s meeting but were not allowed. Rep. John Blust (R-Guilford), the committee’s chairman, said enough public comment had been allowed at previous meetings.
On Tuesday several Democrats on the committee reiterated fears that the bill could be unconstitutional. It treats undocumented people differently than other people charged with crimes, they said – and creates a “rebuttable presumption” against releasing them on bail.
They also said it could further harm already fragile relationships between immigrant communities and police, government and even hospitals. Those needing help or even medical treatment may be less likely to reach out for it if they fear harsher treatment because of their immigration status, they said.
The bill’s chief sponsor, Rep. Harry Warren (R-Rowan), said those concerns were misplaced.
The bill creates harsher penalties for those who make or provide fake ID and would withhold a number of different types of state and federal funds from municipalities that do not comply with federal immigration law.
Those funds would include tax receipts from the sale of beer and wine, piped natural gas, telecommunication services and even state Department of Transportation funds.
The bill would also require the state Attorney General’s office to investigate anonymous tips from citizens who say their governments are not enforcing immigration laws – and make it possible for them to sue local government and law enforcement agencies for not doing so.
The bill’s provisions and penalties are “not meant to be punitive,” Warren said – but are meant to be a deterrent against communities that might be tempted to defy the law, becoming “sanctuary cities” where the undocumented know police and city officials won’t report them to federal immigration officials, including Immigration and Customs Enforcement (ICE).
Since the election of Donald Trump and his issuance of a series of immigration related executive orders, ICE officials have become more aggressive and have come into conflict with some city and state agencies and politicians.
Warren said the N.C. League of Municipalities reports there are no North Carolina cities that are not currently complying with immigration law. But Warren said the temptation could become strong to defy the law as the national debate over the issue continues.
“This is a very emotional issue, and as we watch the federal government begin to address it finally after 40 years of ignoring a whole society of people living in our country in the shadows,” Warren said.
“This is simply a deterrent to say, let’s keep everybody on the same page,” Warren said.
But even some of Warren’s fellow Republicans said the bill went too far.
Rep. John Faircloth (R-Guilford) proposed an amendment to make it easier for municipalities to regain lost funds once they prove they are complying with the law.
“When you start threatening to take those funds away from cities and counties, you need to be very careful,” he said.
As a former High Point City Council member and police chief himself, Faircloth’s opinion held some sway. The amendment passed 6-5 over Warren’s strong objection.
“We did not come up with the penalties halfheartedly,” Warren said. “If this country, if this state, is going to address this issue, it needs to start somewhere with a firm conviction.”
Warren warned that if the penalties were softened, it could become “palatable or almost bearable to go ahead and violate ‘sanctuary’ language or to go into a conflict with the federal government.”
Rep. Joe John (D-Wake) also offered an amendment – this one to counteract the “rebuttable presumption” against releasing undocumented people on bail when they are charged with a crime.
A former judge on the N.C. Court of Appeals, District Court and Superior Court, John said he doesn’t believe judges’ hands should be tied that way. To preserve some judicial discretion, he proposed criteria for pre-trial release.
As a hypothetical, John gave the example of 21 and 24-year old brothers. If the younger brother lost his license and asked his older brother if he could use his license to drive or go to a club, John said, should the older brother really be subjected to harsh felony charges?
Warren said he should.
“That’s exactly the law,” Warren said. “In that particular case, the 24-year-old deliberately determined himself to break the law. There’s a consequence for breaking the law. It’s about time that we stopped concentrating on the consequence and concentrate on obeying the law.”
“There’s a consequence,” Warren repeated. “You know that, being a judge.”
The committee seemed to agree with John, however – voting 6-5 to pass his amendment until Blust, as chair, decided to vote – something he had chosen not to when Faircloth, a fellow Guilford County Republican, offered an amendment. With Blust’s vote, the tally became tied 6-6 and the amendment did not pass.
After the vote, John said he believes the punishment in the scenario he described would be “unduly harsh” – as would a number of other sentences in which discretion is taken away from the judiciary by the bill.
That’s not the only consequence, John said – law enforcement and county jails will likely see an increased burden because the presumption will be against releasing undocumented people before trial even for relatively minor crimes. That will mean already overcrowded county jails will become more packed and law enforcement officers will have more work, John said.
Rep. Pricey Harrison (D-Guilford) said lawmakers also need to consider the consequences to families as some undocumented immigrants are separated from children who are citizens. The human cost may also be a monetary one, Harrison said.
“I believe this bill is constitutionally suspect,” Harrison said. “We’re setting ourselves up for another expensive legal bill.”
The American Civil Liberties Union agreed, condemning the bill in a press statement Tuesday.
“These measures will encourage racial profiling and allow law enforcement to detain people indefinitely without probable cause – practices that would violate the Constitution and do nothing to make our communities safer,” said Sarah Gillooly, Policy Director for the ACLU of North Carolina.
“We urge lawmakers to reconsider this unconstitutional proposal before exposing the state to costly litigation in defense of a misguided law that will separate families and attack the civil liberties of immigrants and citizens alike,” Gillooly said in the statement.
“We are also deeply troubled by the parts of the bill that would create a costly, burdensome and unnecessary framework for enforcing immigration laws by encouraging anonymous tipsters to waste government resources in an attempt to target and single out undocumented North Carolinians who work, go to school, and contribute to our communities in countless ways,” Gillooly said.
The bill now goes to Finance and Appropriations committees before a full vote by the N.C. House and Senate. If passed by both houses, it will head to Gov. Roy Cooper for his signature or veto.