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State alien laws: A constitutional audit, so far


As many as two dozen states have now joined — or soon will — in the effort to crack down on undocumented aliens living within their borders, and they regularly seek to justify their efforts by arguing that the federal government is shirking its duty to enforce its own laws against illegal entry into the U.S.   Just as energetically, the federal government and a host of civil rights groups are striking back, and the constitutional controversy is on its way to a potentially decisive ruling in the Supreme Court — maybe even during the current Term.  Whether the Court will answer all of the issues being raised is doubtful at this point, but whatever it says is likely to be of profound importance.

If the Court takes on a pending case, involving Arizona’s controversial “S.B. 1070” alien control law, and if it does issue a final decision before recessing late next June, the ruling would drop into the middle of a presidential and congressional election campaign in which immigration issues are among the most hotly disputed.

The rush to get the issue before the Justices is evident in the fact that, at this stage, not one lower federal court has yet issued a final decision, one way or the other, on the constitutionality of any of the laws so far being tested.   The cases moving through the federal courts are mainly focused on challengers’ pursuit of preliminary orders (injunctions) to stop the new restrictions from taking effect.  Actual trials of those cases are unfolding at a good deal slower pace, even as trial judges’ preliminary orders for or against enforcement are being appealed by one side or the other.

There has been, in fact, only a single final ruling so far in a major case during the current phase of this nationwide controversy, and it was a dismissal by a federal District judge last Friday of Arizona’s counter-lawsuit seeking to hold the federal government to account for its supposed lax enforcement of immigration laws, and for hundreds of millions of dollars that Arizona insists it has spent dealing with the aliens’ problem.  One of the more provocative claims in that counter-case was that U.S. authorities have “failed to protect Arizona from invasion and domestic violence.”  Among other pleas, it asked for reimbursement of an estimated $760 million the state said it has spent on imprisoning aliens illegally in the country.

The dismissal of that lawsuit (which was a response to the federal government’s own court case against S.B. 1070) led the state’s combative governor, Janice Brewer, to say that “this decision makes it even more critical that the U.S. Supreme Court hear our defense of S.B. 1070.”  (The state’s case is Arizona v. United States, docket 11-182.  It has already attracted a dozen friend-of-court briefs urging review by the Justices.)

The federal government is due to spell out next month, in a filing in that case, its views on whether the Court should review the tough new Arizona law.  Arizona’s law, incidentally, is not the toughest law in the nation on the issues; that distinction belongs to Alabama, but that state’s law– only partially blocked in a lower court so far — is not directly before the Court yet.  And a somewhat similar law adopted in Georgia, partly blocked in a lower court, is also making its way up the judicial chain, as is a law enacted in Utah.

As it presently stacks up, the Arizona case now awaiting the Justices’ first look is a test of only one kind of constitutional challenge to the wave of such laws.  That is the federal government’s claim that Arizona has undertaken to set itself up as a regulator of immigration, conflicting with the primary role the federal government claims it has always had in that field.  That, technically, is the “preemption” argument.  But in some of the other cases, the challengers are claiming that such laws violate the First Amendment, the Fourth Amendment, the Sixth Amendment, or the Fourteenth Amendment, and even that the laws interfere with a constitutional “right to travel.”   Foreign countries — Mexico, Honduras and Uruguay — have joined in the opposition, claiming that such laws threaten their citizens who are living in the U.S.

It is already clear, from the differing reactions up to now among lower court judges, that the Supreme Court — if, as expected, it rules this time only on the preemption argument — may have to provide new interpretations of three of its most important prior rulings on federal and state authority to deal with undocumented aliens living in the U.S.   The first of those is a 1941 decision, Hines v. Davidovitz, containing sweeping language against states’ attempts to act in this field — a precedent upon which challengers are relying quite heavily.  The other two — both precedents that favor the states’ role in helping to enforce federal law — are a 1976 decision, DeCanas v. Bica, and a decision by the Justices just last Term, Chamber of Commerce v. Whiting.

The Arizona petition raised a single question for the Court: whether federal immigration laws bar Arizona’s “efforts at cooperative law enforcement” and thus, by implication, prevent Arizona from enforcing four specific parts of S.B. 1070.  “It is no small matter,” the state argued, “to conclude, as the Ninth Circuit did, that only the national government in Washington can address this problem.”

Here, in summary, are the four provisions that Arizona is not currently allowed to enforce:

1. Police are required, when they make any stop or arrest, to try to determine the individual’s legal right to be in the U.S., if the officer has “reasonable suspicion” that the person is an illegal alien.  If an individual is arrested, release is not allowed until immigration status is verified by the federal government.

2. The state made it a crime to intentionally fail to obtain and carry legal immigration papers in the state.

3. The state also made it a minor offense (a misdemeanor) under state law for an undocumented immigrant to apply for a job, publicly seek a job, or actually work in the state.

4. Police are allowed to arrest someone, without a warrant, if the officer has “probable cause to believe” that the person has committed any crime, anywhere, that would make that individual subject to being deported.

The petition was filed on August 10.  The government has obtained two extensions of the deadline to file its response.  As of now, that document is due at the Court on November 10.  If it is filed at that time, the case could go to the Justices for their initial look at their private Conference on December 9.   If the case were to be granted anytime up through mid-January, it could be heard and decided this Term.

Alabama’s more aggressive law (H.B. 56) has now been through two levels of lower court review, and remains the most rigorous.  In a temporary ruling earlier this month, the Eleventh Circuit Court barred two provisions of the law: one that makes it a minor crime for an alien not to have a “green card” — technically, “an alien registration document” — and one that requires all public schools in Alabama to determine if each child entering any grade was born outside the U.S. or is a child of an illegal alien parent.   Those two provisions had been allowed earlier by a federal District judge, Chief Judge Sharon Lovelace Blackburn of Birmingham.

But the Eleventh Circuit agreed with Judge Blackburn that Alabama could enforce a provision similar to the one that the Ninth Circuit blocked for Arizona: giving police officers authority to determine the immigration status of anyone stopped for any offense, if the officer has a suspicion that the alien is, indeed, illegally in the U.S.  The Circuit Court also agreed with Judge Blackburn that the state may enforce a clause that bars court enforcement of any contract with an illegal alien, a ban on issuing a driver’s license or a business license to an illegal alien (marriage licenses are allowed), and a provision allowing the detention of an illegal alien found to be driving without a license.  (The Eleventh Circuit’s temporary ruling came in the consolidated cases of U.S. v. Alabama, Circuit docket 11-14532, and Hispanic Coalition, et al., v. Bentley, et al., Circuit docket 11-14535.)

Alabama has also filed a cross-appeal in the Eleventh Circuit seeking to enforce all of its law.

A Georgia law (H.B. 87), less sweeping in scope, is now under review in the Eleventh Circuit (Georgia Latino Alliance v. Governor of Georgia, docket 11-13044).  The Circuit Court has yet to issue any ruling; the case is still being briefed.  A federal District judge in Atlanta, Thomas W. Thrash, Jr., in June blocked the state from enforcing a provision like those in Arizona and Alabama, giving police authority to investigate the immigration status of criminal suspects — including those stopped for minor traffic offenses (the same outcome as in the Ninth Circuit regarding the Arizona provision, but conflicting with the Eleventh Circuit ruling on the Alabama provision).

Judge Thrash also barred Georgia from enforcing a clause that criminalizes harboring, concealing or transporting an illegal alien into or through the state — contrary to a ruling by Judge Blackburn in the Alabama case permitting enforcement of such a ban.   Judge Thrash was bitterly critical of this ban, saying “the apparent legislative attempt is to create such a climate of hostility, fear, mistrust and insecurity that all illegal aliens will leave Georgia.”

And the Atlanta judge also dismissed the claim of Alabama officials that U.S. officials are not enforcing federal immigration restrictions.  He wrote: “The widespread belief that the federal government is doing nothing about illegal immigration is the belief in a myth.”  He cited statistics that, “on an average day,” U.S. agents arrest about 816 aliens for immigration violations, and deport about 912, including 456 “criminal aliens.”  In 2010, the judge added, immigration offenses were prosecuted in federal courts more often than any other offense.

In Utah, U.S. District Judge Clark Waddoups of Salt Lake City has blocked that state’s new law (H.B. 497), which parallels other states’ requirement that police officers check the immigration status of persons they stop and detain them while a check on their status is completed.  Judge Waddoups temporarily blocked that order on May 11, but the case has been on a more relaxed pace since then.  A hearing on a motion for a preliminary injunction, originally set for July 14, has been postponed and re-set, but now is scheduled for Dec. 2.  (The case is Utah Coalition of La Raza v.  Herbert, et al., docket 11-401).  The judge said that he was satisfied, at least initially, that the challengers had presented “sufficient evidence to create a substantial question about the constitutionality of H.B. 497.”

These cases, and no doubt others, will proceed on their own schedules, even if the Supreme Court steps into the Arizona case for a decision this Term.

Recommended Citation: Lyle Denniston, State alien laws: A constitutional audit, so far, SCOTUSblog (Oct. 24, 2011, 8:05 PM),