Proposition 200

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Opponents of Proposition 200 say they will try to block the newly-passed state initiative which requires proof of immigration status when applying for public benefits, proof of citizenship when registering to vote and identification when voting. It also requires government employees to report to immigration authorities suspected undocumented immigrants seeking public benefits.Attorney Daniel Ortega talks about the concerns and questions the community is having about the initiative and also the legal strategy to challenge all provisions of the Proposition. Phoenix City Manager Frank Fairbanks discusses the city’s plan to offer protection to its employees from lawsuits filed under Proposition 200 — a move that supporters say dilutes the intent of the measure.

>> José Cárdenas:
Good evening, I'm José Cárdenas. Tonight on "Horizonte," the Phoenix City Council voted to protect city employees charged with violating Proposition 200. You'll hear the city's position on this initiative. This measure is prompting many questions in the Latino community. We'll hear about their concerns and how the consulate general of Mexico is working with the Mexican government to inform Latinos. Also, how will Prop 200 affect hospital and healthcare facilities and personnel? All next on "Horizonte."

>> Announcer:
"Horizonte" is made possible by the friends of Channel 8, members who provide financial support to your Arizona PBS station. Thank you.

>> José Cárdenas:
As you may have heard, proposition 200 will require government employees to report to immigration authorities suspected undocumented immigrants seeking public benefits. Here's what the newly passed initiative says about public employees who violate the measure. "Failure to report discovered violations of federal immigration law by an employee is a class 2 misdemeanor. If that employee's supervisor knew of the failure to direct an employee to make the report, the supervisor is guilty of a class 2 misdemeanor." Under a class 2 misdemeanor, employees would face up to four months in jail and a $750 fine. The Phoenix City Council voted to provide a legal defense and pay fines for employees charged with violating proposition 200. Here to talk about Phoenix's decision is city manager Frank Fairbanks. Frank, thank you for joining us on "Horizonte."

>> Frank Fairbanks:
Good to be here, Jose.

>> José Cárdenas:
Let's talk a little bit about what the city's concerns were before the vote. Was the city talking even then about indemnification for city employees?

>> Frank Fairbanks:
Well, actually, Jose, this whole thing came up as we talked to different employees in the city. We found a number of front line employees, low paid employees who were worried that somehow they might be exposed. They are on limited incomes, and they were afraid that they might be charged with a crime. In addition to what you talked about, there is also the possibility of a suit being filed against them and these employees who wanted to do the right thing were worried that somehow they might have to pay a great deal of money or they wouldn't be able to afford an attorney.

>> José Cárdenas:
You were having these discussions even before Prop 200 passed on November 3rd?

>> Frank Fairbanks:
We were talking about a number of other issues in the organization and they raised it to us. The employees said we're worried about this, what do we do if we are charged with this, what do we do if somebody files a suit against us and we can't afford an attorney. It was a morale issue. How do we work with employees making sure they feel safe, make sure that they do the right thing and make sure they have confidence that we are behind them.

>> José Cárdenas:
What do you say to people who say the solution to this issue would simply be to educate the employees as to what they can and can't do and if they do that, they are not going to have any problems with any criminal charges or civil lawsuits?

>> Frank Fairbanks:
Well, in fact, we're ready to do that. We've put together a big training program and starting tomorrow afternoon, we'll train our supervisors and on Friday we'll train all of our employees, but under the law, any citizen can bring a suit against any public official. So somebody could walk into the office and disagree with what we're doing and bring a civil suit against that employee, and that's a great deal of concern to us, but we are preparing to implement the proposition. We've had training. We've put together procedures. We're going to train all of our supervisors and our employees, but we still have worries about morale of our employees.

>> José Cárdenas:
Exactly what was it that the city council decided to do?

>> Frank Fairbanks:
Basically what the city council said is if the employee does what they are directed, in other words, they follow our procedures in implementing this proposition, then the city will defend them. If the employee goes overboard or fails to implement the proposition, then they would not get any defense for the city, but basically, if they do what we've instructed them, which is to fairly and with care and concern implement the proposition, we will provide them a defense if that were necessary. We hope it wouldn't be necessary. It's really more to reassure the employees and to boost their morale and give them confidence that there will be -- they will be doing the right thing and we'll be behind them.

>> José Cárdenas:
What kind of guidance or training are you giving to the employees?

>> Frank Fairbanks:
Well, thanks to the opinion from the Attorney General's Office, we've had a great deal of the problems of the ordinance resolved. We now for the first time have some sense of what it applies to. It actually applies to only a small part of city services, and so we've gone through all of those services. We've prepared forms for the employees. We've prepared information to give clients or residents when they come forward looking for services, telling about -- telling a citizen or the resident what they have to do, what kind of information they need to provide and what will happen.

>> José Cárdenas:
Frank, what services do you now think would be covered by proper 200?

>> Frank Fairbanks:
The proposition is fairly unclear, but we are going with the attorney general's advice which is that it reports to title 46 of the state code which is social services only, which means it applies to a lot of good programs, programs dealing with seniors, programs for food.

>> José Cárdenas:
Do you expect some problems there?

>> Frank Fairbanks:
I think there is going to be some large problems.

>> José Cárdenas:
What might those be?

>> Frank Fairbanks:
Frankly, under the ordinance, we have to ask every person who applies for those services for identification before we can give them any services.

>> José Cárdenas:
So you've got an 80-year-old senior citizen no matter who they are or what they look like they will be asked for the appropriate identification?

>> Frank Fairbanks:
That's right. That's tough because some of the seniors may have some mental challenges, may have physical challenges. They may have lost their I.D.. Maybe they don't drive, maybe they don't have a passport. There is actually only a limited set of documents that prove you are an American citizen. Even those of us born here will be challenged to prove that we are citizen because it's a limited set of documents. The law says we could not give that widow, perhaps in a walker, we couldn't give her a meal until she provides a specific documents provided in this proposition.

>> José Cárdenas:
Last question. Have you seen any other impacts of proposition 200 which passed two weeks ago but is not yet the law?

>> Frank Fairbanks:
Actually, it's kind of amazing. We have seen a drop off in a wide variety of services, and services that have helped people in the community, people are staying away from services like libraries and parks programs, head start, other programs. Some of those programs aren't covered by the proposition and people are staying away from the services. We worry what the impacts are going to be on those people, on those families and whether it's going to create more problems in terms of crime or other difficulties. So a lot is happening out there.

>> José Cárdenas:
Frank Fairbanks, thank you for joining us on "Horizonte."

>> Frank Fairbanks:
Thank you.

>> José Cárdenas:
Last Friday, Arizona Attorney General Terry Goddard gave his legal opinion on what services and public programs Prop 200 would affect. Here is a portion announced in his news conference last week regarding public benefits.

>> Terry Goddard:
This effort was particularly difficult, because the proposition does not define the critical terms, "state and local public benefits." Therefore we used established rules of statutory interpretation to come to a conclusion about how to interpret the new law. We took into consideration the language of proposition 200, court opinions, federal immigration and welfare laws, and the decision of the proposition drafters to place the statute in title 46, where the laws governing welfare are located. Both the common definition of the key words used and the views expressed in the publicity pamphlet proved inconclusive in defining state and local public benefits. We turned to the placement of the statute in the welfare title as a determining factor. Application of the new law to title 46 is consistent with the language of proposition 200. The welfare title covers a large number of public benefits. It involves multiple state agencies and both state and local programs. Further, there are general government titles in the Arizona statutes where the proposition could have been placed, where it would have unquestionably applied to all functions of state government. It was not. We cannot assume that such a decision was not taken without a deliberate intent and it cannot now be casually discarded. The Supreme Court of the United States has made it clear that immigration is exclusively a federal power. Although states may enact legislation in this area, there are definite limits on what they can do. Any state laws that conflict with the federal system will not be enforceable. The state role is to supplement and fill in the blanks. The 1996 welfare reform act defines what are federal benefits and what are state and local benefits and who may receive them. The welfare reform act also specifically prohibits public benefits going to nonqualified aliens as that term is defined in federal law. As long as proposition 200 is interpreted as limited to the verification of identity and eligibility of applicants for state and local benefits, it is consistent, in our opinion with the welfare reform law. A specific provision in federal law allows states to adopt proof of eligibility requirement. We believe that's what proposition 200 has done. By its terms, proposition 200 applies only to state and local public benefits that are not federally mandated. That's a quote from the proposition. Therefore, federal benefits, as defined in the welfare reform laws are expressly not covered by the proposition, nor are the specific exceptions in federal law for certain enumerated state and local benefits, such as emergency healthcare services, noncash disaster relief and public health immunizations. Those are items which the federal government specifically exempts from any kind of identification requirements. Clearly AHCCCS is not a title 46 program. And it is a -- and it is also a federal benefit under welfare reform. So it is not covered by proposition 200. However, under current law, Medicaid, TANF, food stamps and other federal benefits can only be provided to benefits and qualified aliens as that term is defined in federal law.

>> José Cárdenas:
Even with this legal opinion, many people still have questions. Joining us tonight is Mexican Consul General Carlos Flores Vizcarra. He has been working with the Mexican government and also answering questions the community has about Proposition 200. Consul Flores, thank you for joining us on "Horizonte."

>> Consul Flores:
Thank you for having me, Jose.

>> José Cárdenas:
This is the first time we've had you on the show, give us a quick thumbnail sketch of your background.

>> Consul Flores:
Well, I've had the opportunity to serve my government as consul in Tucson, Arizona from 2001 and I was transferred, appointed by President Fox to be the consul general in Phoenix as of the beginning of this year.

>> José Cárdenas:
Tell us how your office is involved now that proposition 200 has been passed?

>> Consul Flores:
Well, our office deals with one very specific area, which we call "protection." And consular protection means that we are responsible for providing information, consular assistance and eventually, if there are Mexicans that are being sent back to Mexico, that are deported, we have to be notified on each and every case by the U.S. authority.

>> José Cárdenas:
Do you anticipate that as a result of the passage of proposition 200 there will be an increase in deportations?

>> Consul Flores:
Well, I would like to guess on such a delicate issue, but what I can tell you as of now, is that we've had a great uproar and very nervous Mexican community that are almost panicky about the eventual implementation of Prop 200.

>> José Cárdenas:
I want to talk about what the consulate is doing to calm those fears. What is the Mexican government's position on Prop 200?

>> Consul Flores:
The Mexican government has made it very clear that we are opposed to this position that has become a law as the electors of Arizona voted it. We consider that as they voted it in, they did not value or recognize the contribution that Mexican immigrants do to the State of Arizona. And furthermore, we consider that this piece of legislation will not help all of the instances of mechanisms of cooperation that Mexico and Arizona have. I mean, Mexico has a border with four American states, a very small border with New Mexico and larger ones with Texas, California and, of course, Arizona. So, in the worse scenario, I would say that many of the activity that goes on between Mexico and Arizona will tend to go elsewhere.

>> José Cárdenas:
I want to talk about some of those impacts. Before we do that, though, you mentioned the panicked reaction of Mexicans living here. Presumably these are people who don't have papers. What have you seen? Describe that for us.

>> Consul Flores:
It's very interesting. One would imagine that it only deals with a single or sole migrant, undocumented migrant here in Arizona. But sometimes we've come across people who are undocumented migrants that have children that have been born in the U.S So they are very much concerned about if they should be taking their children to school, if they should be taking their children to the doctor to get their medical treatments, if they should eventually leave the state, what will be their situation, if they are eligible for deportation, what will happen to their offspring, to their children, as they are American citizens because they were born here. So we are dealing with very delicate humane issues.

>> José Cárdenas:
You've been spending a lot of time with Spanish language media. Tell bus that.

>> Consul Flores:
Well, I am trying to contribute in a positive manner to calm the Mexican communities in the valley, mostly here in Maricopa County, telling them that, of course, this was voted by the electors of the state, but has not been enacted. And we are waiting to see the results with due respect to the -- to all of the procedures that will be followed as the Governor proclaims the law.

>> José Cárdenas:
Now, are you -- we had a segment on the attorney general's opinion. Are you satisfied with the interpretation that the attorney general has given of proposition 200 in terms of its scope?

>> Consul Flores:
Well, to be honest and to keep with my mission here, I have to be very respectful about the opinion of public officers here in the U.S

>> José Cárdenas:
What kind of services are available in addition to what the consulate is providing to people to answer to all of these various questions?

>> Consul Flores:
For anyone who is more or less knowledgeable about the Vienna convention on consular affairs, we are ready and I've been, of course, in touch and in close contact with my superiors in Mexico and eventually we will help all of those Mexicans who are eventually in the process of being deported.

>> José Cárdenas:
And the relevant portions of the Vienna convention are those that require notification of the consulate?

>> Consul Flores:
Yes, that is international law. That is a treaty that has been signed by the U.S

>> José Cárdenas:
In terms of dealing with these questions that people have been asking, you've been going on the radio, other people have been doing similar things. What are the resources are there available for people to get answers to their questions of the impact of Prop 200?

>> Consul Flores:
We've been very active in that sense, as you mentioned. Of course, they can call us at the consulate, at the Mexican general consulate here in Phoenix, or they can contact any other consulate that Mexico has in Arizona. We have a total of five consulates here, and they will find out about all of the resources. They go in a very vast array of resources, all the way from aiding those -- helping those who are in medical need, those elderly Mexican citizens that are living here, and those who need special care.

>> José Cárdenas:
Now, we know that there will be a legal challenge. That's been made very public, presumably the Mexican-American education from MALDEF will be initiating litigation soon. Is the Mexican government involved in strategy planning for that lawsuit?

>> Consul Flores:
No, we are only taking care of our dealings with the Mexican communities, and of course, we keep in touch with the authorities, but we are not to modify in any way the scope and the activities of American agencies, American authorities.

>> José Cárdenas:
You mentioned before that one strategy or at least directive of the Mexican government is to make clear to the people of Arizona the contributions that Mexicans have made. What would those be in your opinion?

>> Consul Flores:
Well, if Arizona has the fifth largest agricultural economy in the U.S., that is due basically to the Mexican factor. That is, those laborers that come from Mexico to work the Arizona fields. If we're talking about tourism, I will say that not only because Mexico is the second partner to Arizona economically speaking, but because Mexicans come to spend almost a billion dollars in entertainment, purchases in the malls and hotels, restaurants and so on. And because the balance, the general balance and the value of economic dealings between Mexico and Arizona is a figure that surpasses $14 billion and we do not want to do away with that. That has been built by the good will of many politicians, of many entrepreneurs, of many business people, the business community on both sides of the border, and that has to be protected, I think.

>> José Cárdenas:
Let's talk about the reaction in Mexico. Just the other day there was a column in one of the biggest papers in Mexico city, written by a former Mexican ambassador to the United States, Jose money tan your. The title is Arizona and racism. Is that indicative of the reaction in Mexico to proposition 200?

>> Consul Flores:
It is, unfortunately, Jose, the reaction in Mexico has been very clear. They are totally in disagreement with this. This is not the way to solve our very delicate immigration issue, but that was said also by political local leaders at the federal level, and any way, the proposition was crafted in such a manner that people thought that it would stop illegal immigration. It does not do that. But it has created a bad atmosphere, a bad environment for business, and has poisoned the waters in a way. And what we're trying to do in a positive way is to solve and to make amends of those things.

>> José Cárdenas:
What kinds of impacts do you foresee resulting from what I guess you would say is a black eye for Arizona in Mexico?

>> Consul Flores:
Well, I would say that Mexicans have a sense of pride that everybody knows, and those thousands of tourists that used to come to Arizona, the way they are more informed about proposition 200 and the way it is enacted, not for emotional reasons but for practical reasons they will refrain, they will tend to stay away because they will not want to go through the hassle of being asked for identification. They will not be able, of course, to prove that they are American citizens, and in the process of clarifying whether a tourist is deserving of special treatment, they might just want to stay away and not come.

>> José Cárdenas:
Well, those people presumably are coming here as tourists with appropriate visas, so how would -- is it just the atmosphere that they would think is not hospitable here in Arizona and they will vacation somewhere else?

>> Consul Flores:
That's the basic issue. The other one is that the implementation of that act, of that law, of that legislation is very unclear. Seas it's very unclear for American citizens, for those public employees who are supposed to enact it. So furthermore, it's more worrisome for Mexicans.

>> José Cárdenas:
We're about out of time. Any final thoughts on proposition 200?

>> Consul Flores:
Well, as I said, we have to keep a good attitude. That is my mission. That is the mission that has been put in my charge by President Fox and the secretary. They are following up very carefully the evolution of this political process here in Arizona, and, of course, we hope for the better, and we hope for the better also in a broader scope to have a migratory arrangement or agreement, however you want to call it, so that migration from Mexico is done more orderly and in a legal manner in the future.

>> José Cárdenas:
Thank you for joining us on "Horizonte."

>> Consul Flores:
Thank you Mr. Cardenas.

>> José Cárdenas:
Thank you for joining us on "Horizonte."

>> John Rivers:
You're welcome.

>> José Cárdenas:
You may have questions about Proposition 200 when it comes to hospitals and healthcare facilities. Here with us to talk about the measure's effect on healthcare is President and CEO of Arizona Hospital and Healthcare Association John Rivers. The association was one of the largest contributors to the anti-prop 200 measure, preelection.

>> John Rivers:
Uh-huh.

>> José Cárdenas:
Why?

>> John Rivers:
There were several reasons. Part of it is what we call the moral hazard and part of it was more practical economic issues. The moral hazard that we saw was that the passage of Prop 200 would deter people who needed healthcare from actually seeking healthcare. We couldn't proof that. We couldn't tell you that we had scientific data that people who needed health wear care would be afraid of receiving it, but it was a big, big worry that we had. I would say after the election, when I read the day after the election that there were Latino families who were afraid to send their children to school for fear of them being identified in some way as someone who shouldn't be there, what that told me was that my fears about people not seeking healthcare were probably not unfounded. The other worry that we had was we felt that the federal emergency services program in Arizona might be in jeopardy. This is a program that the State of Arizona and the federal government of the United States enter into voluntarily. It is not a federally mandated program, and so we thought it might fall under the purview of proposition 200, and that program provides healthcare services for the most part to undocumented immigrants and for the most part to immigrants who show up in our emergency rooms needing healthcare.

>> José Cárdenas:
These are people you would have to treat anyway?

>> John Rivers:
These are people we would have to treat anyway, but one of the requirements with that contract with the federal government for participation in the federal emergency services program is that you have to comply with a number of federal statutes and regulations, one of which does not permit us to inquire about immigration and report a person's immigration status because under federal law, that is perceived to be potentially a barrier to that person receiving care.

>> José Cárdenas:
How much money are we talking about from the federal government under this program?

>> John Rivers:
The federal emergency services program represents about $100 million a year to Arizona.

>> José Cárdenas:
And I understand there is additional funding that Senator Kyl secured in this last session?

>> John Rivers:
Yes, in the Medicare modernization act that congress passed, oh, almost a year ago, there was a provision in there that was inserted by Senator Kyl that provided for the first time specifically for payment for healthcare services, to hospitals, to doctors and others for providing healthcare services to undocumented immigrants. FES money tends to flow in that direction, but the Kyl amendment watts terribly important for Arizona because it earmarked the funds specifically to provide healthcare for undocumented immigrants.

>> José Cárdenas:
We're talking about another $40 million for Arizona?

>> John Rivers:
Yes, that's $40 million in addition to the $100 million program that's there in the FES program.

>> José Cárdenas:
So pre prop 200 we had $140 million coming from the federal government to help with healthcare costs imposed by unlawful immigration and now there is concern that Prop 200 may eliminate a big chunk of that?

>> John Rivers:
Yes, the concern is -- and a lot of this depends on how Prop 200 gets interpreted. Earlier in on your program you had excerpts that I was watching from the attorney general's press conference on this. If his interpretation, which by the way is very important, but doesn't have the same force of law as a court interpretation, if his interpretation is upheld at the end of the day, then our fears about the impact on healthcare will have been proven to have been something we didn't need to worry about in the first place. But there are so many unknowns about this initiative that it was normal for a lot of people to fear the worst, and we don't know if Terry Goddard's interpretation eventually will be upheld by the courts or turned into something else.

>> José Cárdenas:
We have to leave it at that. Thank you for joining us.

>> John Rivers:
Thank you.

>> José Cárdenas:
To see a transcript of tonight's show or see what's coming up "Horizonte," go to our web site www.azpbs.org and click on "Horizonte." Thank you for joining us tonight. I'm José Cárdenas. Have a good evening.

Frank Fairbanks: City manager, Phoenix;

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