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States forced to fill void left by federal government on illegal immigration

Hours after the immigration reform bill he had championed went down to defeat, Sen. John McCain told me what he thought would happen next.

"You will see the states and cities scrambling to pass their own laws and regulations," he said, "and you're going to get a completely contradictory set of policies."

It did not take long for McCain's prediction to be confirmed - right in his own home state of Arizona. Four days after the Senate killed the comprehensive immigration bill supported by President Bush, Arizona Gov. Janet Napolitano, a Democrat, signed a bill her Republican Legislature had passed imposing extremely tough sanctions on employers who hire illegal immigrants.

Napolitano, who had vetoed somewhat similar legislation a year earlier, said in a statement that she decided to approve "the most aggressive action in the country" against such employers, "because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs."

She signed the bill, despite finding it so severely flawed that she called on legislative leaders to plan a special session this fall to amend the measure even before it is scheduled to go into effect next Jan. 1.

Arizona has been swamped with illegal immigrants coming across the border from Mexico. Napolitano declared a border emergency in 2005 and moved in additional law enforcement resources, as federal border patrols reported that half their arrests nationally were taking place in Arizona.

I know Napolitano to be a conscientious and committed executive. As a former U.S. attorney for Arizona and state attorney general, she is serious about law enforcement. But she is also a compassionate person, and she has joined McCain in unsuccessfully opposing voter initiatives to deny public benefits to the children of illegal immigrants. And she vetoed other immigration bills.

But with the failure of Congress, she found herself in a position of having to leave the problem to fester or signing a seriously flawed bill.

The new state legislation requires every Arizona business to verify the legal status of each new employee. That's also a requirement of long-established federal law, but the feds rarely enforce it. Under the new Arizona statute, the first violation can result in a suspension of the business license. A second offense can mean permanent revocation - in effect, an order to go out of business.

Napolitano warned the Legislature that some of those provisions went too far. Without any exclusion for vital public services, she said, a hospital or power plant could be shut down for hiring undocumented workers.

She also found the financing in the bill "woefully inadequate" for the task of enforcing the law, and she worried about the absence of any statutory protection against discrimination by race or national origin.

But she said, "Because of Congress' failure to act, states like Arizona have no choice but to take strong action to discourage the further flow of illegal immigration through our borders."

In a separate letter to Speaker Nancy Pelosi and Senate Majority Leader Harry Reid, her fellow Democrats, Napolitano chided Congress for having "once again failed to take action on comprehensive immigration reform."

She pointed to one of the other practical consequences of that failure. The Arizona bill requires employers to use the federal government's Basic Pilot Program, a computer database that lets businesses check legal residences against Social Security numbers, to verify the employment status of new workers. Currently, Napolitano noted, the program serves fewer than 15,000 businesses nationwide. Arizona alone will add 130,000 to 150,000 new businesses to its clientele. Napolitano pointedly asked if the feds are prepared to finance a tenfold increase in the demands on that system.

She concluded her letter: "For years now, I have spoken out on the desperate need for comprehensive immigration reform. Today, I renew my call on Congress to enact such legislation. The United States Congress has a responsibility to act swiftly and definitively to solve this problem on the national level."

When Congress fails that responsibility, it imposes an unfair burden on its partners in state and local government - and on the people they serve. That failure has become chronic and crippling.

E-mail nationally syndicated columnist David Broder at davidbroder@washpost.com.