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Divided House passes border measure

HCR 2060 passes in the House of Representatives.

By Jakob Thorington, Arizona Capitol Times

Republicans in the state House of Representatives approved a ballot referral on party lines that will allow voters in November to decide if state law enforcement should arrest people who have entered the country illegally. 

“There were allegations that there were members from this very chamber colluding with them to cause chaos today. I am not okay with that,” Toma said.

With the House’s passage of the measure, it will next be sent to voters as a ballot question during the Nov. 5 general election, bypassing action from Gov. Katie Hobbs.

If approved by voters, the measure would establish state criminal illegal entry through the border and drug offenses involving fentanyl that cause death. 

The measure is similar to Texas’ SB4 and would require law enforcement officers to have probable cause to arrest someone that has entered the country illegally. 

“I’ve heard some say that they don’t want our Arizona to be like California,” said House Minority Whip Nancy Gutierrez, D-Tucson. “And I say with HCR2060, don’t Texas my Arizona.”

Republicans said Tuesday the probable cause requirement of the measure separates it from the controversial immigration law SB1070 that lawmakers passed in 2010 that required police officers to investigate people they believed to have entered the country illegally based on reasonable suspicion.

Toma said a police officer would have to physically see or have evidence of someone crossing the border illegally in order to make an arrest.

“Just seeing someone of a different color driving through Phoenix or that doesn’t speak English – that would make no sense whatsoever,” Toma said. “There’s no way you could get the probable cause.”

Rep. Patty Contreras, D-Phoenix, said there’s no guarantee in the bill that police wouldn’t racially profile Arizona residents at traffic stops if HCR2060 becomes law. She also noted the measure grants immunity to certain state personnel who would be tasked with enforcing the measure; although the immunity provision only applies to the legislation’s scope, Toma said racial profiling is not protected by the measure.

Other Democrats said the bill is unconstitutional and that immigration enforcement is the federal government’s responsibility, although Republicans say state action is necessary and the federal government has failed to act. 

House Assistant Minority Leader Oscar De Los Santos, D-Laveen, said the bill violates the single-subject clause that ballot referrals are limited to by the Arizona Constitution and it doesn’t include a funding mechanism in the bill, which is also required constitutionally. 

The measure also makes it a felony for someone not lawfully present in the U.S. to apply for federal public benefits or use false documents in submission for benefit applications as well as establishing sale of lethal fentanyl as a criminal offense. 

“(HCR) 2060 embraces the hodgepodge of disparate subjects including employment verification, immigration law, immigration enforcement, sentencing for drug crimes, laws related to city, town and county administration to public benefits and the legislature’s right to intervene in lawsuits,” De Los Santos said.

“Simply put, this cannot be conceivably construed as a single subject.”

A fiscal note from the Joint Legislative Budget Council estimates the measure would cost $325 million annually for border enforcement and incarceration costs. 

But Toma said the cost of the bill would be offset by what Arizona spends in costs associated with illegal immigration. The fiscal note estimates those costs amount to $3.2 billion annually. Toma also expressed confidence the bill meets requirements for the single-subject clause. 

House Majority Leader Leo Biasiucci, R-Lake Havasu City, said he was willing to spend any amount of money in efforts to combat trafficking, sex and homicide crimes associated with illegal border activity.

“Why are we even sitting here complaining that money is an issue,” Biasiucci said. “IIf we spend a billion dollars to ensure that no child gets raped again, I will happily do it in this legislature.”

Earlier on Tuesday, President Joe Biden issued an executive order that temporarily suspends entry of migrants seeking asylum who cross the border unlawfully. The New York Times reported Biden attributed signing the order to Congressional Republicans blocking bipartisan border legislation and is the most restrictive border policy instituted by any modern Democrat.

“He’s doing exactly what we are doing here today,” Biasiucci said. “But it’s three and a half years too late.”

After the House vote, Living United For Change in AZ announced the organization is preparing a lawsuit to try and strike down the bill from the November ballot. 

If HCR2060 remains on the ballot, funding won’t be considered by lawmakers in current budget negotiations since the budget is expected to be signed by Hobbs in the upcoming weeks. Additionally, the measure is contingent on what the U.S. Supreme Court decides with Texas’ SB4 and can only take effect 60 days after SB4 is determined to be legal by the court.

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