State Immigration Laws: The Next Battleground

Tuesday, November 22, 2011 - 13:53

In June of this year, the Alabama Taxpayer and Citizen Protection Act became law.  The statute authorizes law enforcement officers to inquire about the immigration status of anyone lawfully stopped if there is a "reasonable suspicion that the person is undocumented.”  It bars undocumented immigrants from enrolling in public colleges, requires public schools at all levels to publish enrollment data on both legal and illegal immigrant students, and makes it a crime to knowingly rent housing to an undocumented immigrant.  It also makes it a crime for a foreign national to fail to carry papers proving lawful immigration status.  On the business front, it penalizes employers for the knowing hire of an unauthorized alien, requires all Alabama employers to use the federal E-Verify system and seeks to bar businesses from taking tax deductions on wages paid to unauthorized immigrants.

Alabama's law is of course not the first state immigration-related statute.  Over the last several years, state legislatures have increasingly sought to enact laws relating to immigration, arguing that the large population of undocumented workers and Congress's failure to enact comprehensive immigration reform have unduly burdened the states.  In the first half of 2011, state legislatures had considered more than 1500 bills and resolutions relating to immigrants and enacted more than 250 of them.  But Alabama's law, along with similar statutes in Arizona and South Carolina, is among the nation's harshest and presents the next frontier in the long-running debate of the role of states in setting immigration policy and playing a role in immigration enforcement.

State and local immigration-related laws raise significant constitutional issues -- principally, whether the federal immigration laws preempt state and local attempts to regulate foreign nationals.  The Supreme Court settled one facet of this debate last May.  In Chamber of Commerce v. Whiting, the Court held that the Legal Arizona Workers Act -- which penalizes employers for employing unauthorized workers and requires them to use the federal E-Verify system -- was not preempted by the Immigration Reform and Control Act (IRCA) because it falls within IRCA's savings clause, which allows states to sanction employers for immigration-related employment violations if they do so through state licensing laws.  

Whiting focused on the relatively narrow question of federal preemption in employer sanctions.  But the latest wave of state laws is forcing courts to grapple with a much less circumscribed question of federal supremacy than was addressed in Whiting. Alabama's law and similar statutes in Arizona, South Carolina and several other states are the next frontier in the long-running debate over the role of states in immigrant enforcement.  These laws present much broader issues and seek to create wide-ranging state immigration enforcement powers, along with regulating immigrants' access to state and local government services, housing, business transactions and education.  

The Department of Justice, along with the ACLU and immigrants' rights groups, has assiduously challenged these laws on the preemption grounds.  Many aspects of the state immigration enforcement laws also raise significant discrimination concerns.  The vague "reasonable suspicion" standard has aroused much controversy and concern.  While these statutes prohibit law enforcement officers from considering race, color or national origin, some critics have argued that it is nothing short of inevitable that police will use these supposed indicators of foreignness.  The provisions limiting access to public education fly in the face of longstanding Supreme Court precedent.  Concern about civil rights violations and the potentially discriminatory application of the Alabama law has prompted the Department of Justice to establish a hotline for reports on the impact of the law.

The results in the federal courts have thus far been mixed.  Earlier this year, the U.S. Court of Appeals for the Ninth Circuit upheld an injunction against Arizona's controversial S.B. 1070, on which much of Alabama's law is based.  Alabama's own statute was initially blocked, but a federal district court ultimately upheld many of its provisions and on appeal, the Eleventh Circuit largely agreed.  With the current split in the federal circuits, the Supreme Court will almost assuredly confront these issues in the near future.

But until then, Alabama's harsh law is hitting the state's economy.  While some claim that the state's unemployment levels have dropped since the law took effect, Alabama's agriculture industry has been hit hard by an exodus of foreign laborers.  And the law has been cited as evidence that Alabama is unwelcoming to foreign nationals by other U.S. states trying to lure foreign investment.  Just recently, a foreign executive for a large international automotive manufacturer with plants in Alabama was arrested and detained by local police for not holding the right immigration documentation under the new law - an incident that is not likely to endear the state to global businesses.  As courts weigh the constitutionality of the new law, the economic realities may play just as great a role in limiting its effect.

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.comNancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.