The Constitution immigrants need
As the federal government threatens undocumented immigrants, New Yorkers have an opportunity to provide vital protections to those immigrants living in the state. On Election Day, voters can choose to convene a constitutional convention where the rights of those immigrants could be strengthened in ways that the federal government cannot erase. It’s an opportunity we must not miss. New York has always been a magnet for immigrants. The Statue of Liberty is here — not in Washington, D.C. — for a reason. Yet the state Constitution has never addressed the discrimination immigrants face.
It addresses only discrimination based on race and religion, not on country of origin or immigration status. Notably, it does not even prevent discrimination based on gender.
That’s a misfit for the character of our state. In 2015, more than 4.5 million foreign-born individuals constituted 22.9% of New York’s population. Only California has a higher count.
More than 3 million foreign-born immigrants live in New York City, more than in any other city in the world. They represent over 37% of the city’s residents.
Among these immigrants are an estimated 817,000 in New York State, including 575,000 in New York City, without valid federal authorization. These undocumented immigrants — who pay taxes, otherwise observe our laws, and enrich our communities — contributed $40 billion to New York’s economy and $1.1 billion to state and local taxes in 2015.
While the equal protection clause of the U.S. Constitution covers all persons within the jurisdiction of any state, the U.S. Supreme Court has applied a relaxed standard of review to discrimination against undocumented immigrants. As a result, laws depriving those immigrants of basic civil rights have been upheld.
An amendment to the state Constitution could prohibit such discrimination — and finally reflect the values of New York, where over the decades governors and mayors, Republican and Democratic alike, have consistently defended the rights of undocumented residents.
While it’s federal laws that mandate that undocumented immigrants be removed — subject to the executive branch’s priorities, which are at least in theory supposed to be focused on threats to public safety — the likelihood is uncertain. Even if the federal government initiates removal, proceedings can take years.
More importantly, immigration status is often uncertain. Immigrants can gain authorization to remain by falling in love with and marrying an American. More than 800,000 young undocumented people who came into the United States before the age of 16 received authorization to remain under Deferred Action for Childhood Arrivals — an Obama-era program.
President Trump has canceled DACA, but suggested in a tweet that “Congress can legalize DACA,” and added that, if not, he “will revisit the issue.”
Basic rights should not hinge on such vagaries.
People are undocumented because the federal immigration system, desperately in need of sensible reform, has not provided meaningful pathways to legal status for many who have family or jobs in the United States. As New York will continue to be home to undocumented immigrants, it is only fair that the state Constitution provide equal civil rights to all, regardless of immigration status.
Once such equal rights are established, they will preclude discrimination against New York residents based on their immigration status.
For example, New York would have to grant driver’s licenses to undocumented immigrants. That would help ensure that our roads are safe and provide a boon to those who need to drive in order to work or take their children to school.
Such an expanded protection against discrimination in our state Constitution could not be erased by the federal government.
In specific areas, federal law may preempt the states — but, under our federal system, state law governs most civil rights, such as the right to contract, to an education, to buy a home, to drive and more.
At a time when the federal government seeks to force state and local law enforcement to punish undocumented immigrants in ways that go beyond valid federal preemption and financial incentives, asserting New York’s sovereign lawmaking and enforcement rights is vital.
The first step in getting from here to there is voting yes on a constitutional convention.