Justice Department Appeals Alabama Immigration Ruling

The Obama Administration is moving against the new Alabama law on illegal immigration — as it has the Arizona law. I have discussed the novelty of such challenges, which may soon include other states. I will be discussing the Alabama law on NPR’s Diane Rehm Show on Wednesday, October 5th.

The Obama Administration has now involving in extensive litigation against the states. In addition to the immigration litigation, the Administration is combating a majority of states opposing the health care legislation. The result is a level of litigation against states that is unprecedented. While the desegregation period led to such confrontations, it was largely the enforcement of federal law at schools and other locations. In these cases, the government is taking the lead in challenging laws on immigration. It is not just unprecedented it is unnecessary. There were plenty of parties challenging these laws and historically the Justice Department has preferred to confine itself to amicus filings. The Obama Administration, however, decided to double down on the immigration issue and be a named party challenging the laws. I am not sure of the soundness of that political judgment, but it is more motivated by political and legal necessity.

In the case of Alabama’s law, there are some differences with the Arizona law. U.S. District Judge Sharon Blackburn issued the 115-page opinion below upholding parts of the law while temporarily blocking other portions. She allowed the state to implement, for example, a provision requiring police to check the residency status of suspected illegal immigrants during traffic stops. This has created a split in courts on whether such laws are preempted by federal law.

Under the law, Alabama police may now detain people driving without a license in order to check their immigration status. Moreover, contracts knowingly entered into with illegal immigrants will be considered invalid, and illegal immigrants will not be allowed to enter into “business transactions” with the state, including applying for driver’s or business licenses.

One of the provisions allowed to go into effect makes it a felony for “an alien not lawfully present in the United States” to apply for a license plate, driver’s license, business license or other business license. Blackburn also declined to block sections requiring schools to check the citizenship status of children. However, Blackburn blocked a ban on the right to solicit or apply for jobs and another that would have outlawed knowingly harboring or transporting them. She also blocked a provision barring businesses from deducting the wages they pay to unauthorized aliens from their state taxes.

The sponsors billed the legislation as going beyond Arizona and seeking, according to chief sponsor, Alabama Rep. Micky Hammon (R-Decatur), to “attack every area of an illegal alien’s life.”

The provision requiring public schools to determine the immigration status of public school students and to report the number of undocumented students in their district presents a particularly novel issue. Blackburn’s description of the law is sometimes hard to square with its language. For example, she held that the Alabama law “does not compel school officials to determine the immigration status of a parent of a student.” However, the law states that “[e]very public elementary and secondary school in this state . . . shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.”

The decision may also run afoul of Plyer v. Doe, 457 U.S. 202 (1982), where the Supreme Court struck down a state statute denying funding for education to illegal aliens as well as the imposition of an annual $1,000 tuition fee for each illegal alien student. The Court applied an intermediate scrutiny standard that required the state to show that the law further a substantial state goal. Likewise, in Hines v. Davidowitz, the Supreme Court struck down a Pennsylvania law requiring “every alien 18 years or over” to register annually with the state. The Court found preemption based on “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.”

However, recently, ruled in Chamber of Commerce v. Whiting that federal law does not preempt an Arizona law that provided for the revocation or suspension of business licenses for those who knowingly employ of illegal immigrants. Chief Justice Roberts wrote:

Federal immigration law expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.” 8 U. S. C. §1324a(h)(2). A recently enacted Arizona statute—the Legal Arizona Workers Act—provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. The law also requires that all Arizona employers use a federal electronic verification system to confirm that the workers they employ are legally authorized workers. The question presented is whether federal immigration law preempts those provisions of Arizona law. Because we conclude that the State’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted.

While this case is going before the Eleventh Circuit, Arizona is seeking review of the Supreme Court of its law.

Here is the opinion: ImmigrationDecision
Source: New York Times

32 thoughts on “Justice Department Appeals Alabama Immigration Ruling

  1. I agree that Immigration is an exclusive Federal Issue….However, it seems that this is a major contingent voting base…I am trying to figure the rational for selectively enforcing the Constitution….

  2. AY – by my understanding of history the Constitution has always been selectively enforced. The Founders not only created a dynamic tension between the various branches of the Fed but between the States and the Fed. The fact that different groups have used the different players to try achieve their ends and these actions often caused the Laws to be bent, twisted or ignored in odd ways.

  3. Frankly,

    I could not agree more…Lets take for instance that little ole strife atween the states…Sherman (Grant, Johnson) and Lee…the little ole banking system….Hamilton and Burr come to mind…

  4. Rick Perry has paid a huge political price for being too liberal on immigration. He now trails both Romney and Cain.

  5. Well, you have to have someone to scapegoat before you can put them concentration camps. “Detention camps” are becoming as big and profitable a private enterprise as prisons are. Soon someone will come up with the Final Solution for illegal immigrants. But I could be wrong. It’s not like history ever repeats.

  6. I want to echo Gene’s comments. I am a little confused when the Obama administration is taken to task for enforcing the Constitution too vehemently, when many of us are upset that the President has not been enforcing the rule of law in other other areas.. If the State is violating the Constitution or trying to preempt valid Federal Laws, the DOJ should be going after them. At the same time, the DOJ should be enforcing the laws against torture and indicting those that violated it. The Obama Administration should not be allowed to target citizens without due process so where is the DOJ there? It is the selectivity of enforcement that is the issue.
    Finally, everything the President, any President does has a political impact and was or should have been considered before any that action is taken.

  7. OT … just signed a petition that my U.S. Congressional Rep (a democrat) will be delivering to Wall Street today. When the U. S. reps start jumping on board you know the protest is having an impact.

  8. Blouise, The reps will follow the unions. Romney is out saying the protesters are engaging in dangerous class warfare.

  9. SwM,

    Why has it taken 3 years to get this going? Because young people mistakenly thought it would all pass. Well, it didn’t pass and it took 3 years to really feel the pain. They’re feeling it now all across the country and they know who to blame and why.

    Government failed to reform the financial system because government allowed the banks and Wall Street to insert themselves into the reform process and shut it down.

    When commerce confronts passion, commerce appears to win in the short term but always, always loses in the long term. We are now in the long term.

    Cain and Romney may try to call this class warfare but they are simply sticking their fingers in a dike that has holes the size of boulders. Events have passed them by and they are too stupid to see it … short term thinkers.

    But it isn’t only republicans … democrats with ties to big banks and Wall Street are also out of the running and nothing will save them.

    Unlike the Civil Rights or Nam protests, nobody needs a podium or a newspaper/TV/radio forum … Twitter, Facebook, and the internet are the modern bullhorns. Gravity has begun its pull on the pendulum swing.

  10. Just talking to a young person involved in this, and he said the same thing you are. Just thinking Romney and Cain are foolishly politicizing this.

  11. SwM,

    Smart CEO’s have already jumped ship saying they want to compete in the “market place” not in the political place. Smart CEO’s don’t want to appear to be buying a place in the market place through political action as Citizens United allows. They’re backing away from super pacs and from organizations like the Chamber of Commerce because they know that such organizations cast them in a bad light with the American people in the long run thus hurting their bottom line overall.

    Funny how these things all start coming together at the same time.

    Obama backed the wrong horse when he failed to nominate Elizabeth Warren. Now he’s out there swingin’ in the breeze along with his republican buds.

  12. SwM,

    Gotta go. Time to get to work on signature gathering to stop the gerrymandered maps for Congressional districts Kasich and his teabagging thugs drew up. It’s a petition drive to place a repeal of House Bill 319 on the November 2012 ballot. They are some of the most gerrymandered congressional districts in the country.

  13. can’t wait for that first epidemic of antibiotic resistant TB, ebola, west nile or some of the other viruses and bacteria that we haven’t seen much of in the last century because the sufferers were afraid to go to a hospital.

  14. NOT JUST FARMERS, AGRICULTURE? IT IS EVERY AMERICAN BUSINESS? SHAME ON YOU!

    Pay Farm labor a decent living wage, with health care and education for their family, instead of dumping the illegal labor costs on the taxpayer. Then you will find people desperate for a job, any job will come forward to work the fields. Farmers and giant agricultural consortium’s have been underpaying illegal labor forever and along with all the special subsidies, the same as most business owners. It has been proofed that it only cost a few more cents to the consumer, for vegetable and fruit if labor for the agrarian community pay fair wages for the work done. My grandfather picked apples in Washington State as did other family members. To make ends meet after World War Two, my distant relatives in the English countryside, picked strawberries for the local farmers. Make it a national policy to implement the E-Verify bill (H.R. 2885), identifiable as the “Legal Workforce Act”. Contact your own local Senator or Representative and insist as a voter to your federal politician at 202-224-3121.

    This is just not about the farmers; it’s about meat packing plants, factories and manufacturing. Of course they don’t want to employ regular Americans-legal residents. It’s about any company owner—big or small—who wants to pay as little as possible, with no restrictions on as little they want to pay, for a person’s labor. They have violated this ‘Rule of Law’ because there have been no restrictions on prohibitions to stop them, until Lamar Smith’s H.R. 2885. Special interest groups and the radical open border activists, are currently trying to kill the federal ‘Secure Communities’ initiative. Any individual that is apprehended by the police will have their fingerprints forwarded to ICE, Homeland Security and the FBI for processing. Police data-bases can quickly assess who has been previously arrested, whether he/she is an illegal alien or not.

    Learn the facts about illegal alien costs, statistics and business corruption at NumbersUSA, Judicial Watch and American Patrol. Make every Business, Company and workplace be committed to E-Verify or face harsh consequences. No business owner, no matter who he is, should think he is above the law. That also is a constant with political figures who own grape plantations in the bread basket of central California. This is not just for Farmers and agriculture but for every business owner, so that we can put every American worker in a job and stop catering to other counties impoverished. Go further and re-enact the “Bracero Project” of 1942 with rules and regulations, arranged so migrants from across the Southern border have easier access to specific jobs. The “Bracero Program” established why the plan proved immeasurably accepted among so many migrants, for whom seasonal labor in the US presented grand opportunities, despite some of the poor conditions they often were confronted with in the fields and camps.

    Even under some poor situations they saved money, could buy consumer good, tools or an older vehicle, and returned home with new outlooks and a greater sense of self-respect.
    In places as Mexico counselors studied these positive aspects of the economic and cultural effects of bracer project. If they are retained for employment the government must oversee they are treated correctly. They have to be issued a field workers visa that terminates at the end of harvesting and a mandatory return to their own country. Only through an employment office at entry ports can these people be hired and not through third parties or recruited by less than honest business enterprises. If they remain free of any major problems while employed in the U.S., they can renew their visas. As in Mexico—every person is tracked; all the farm and agricultural workers must be tracked, so they cannot decide to drop the job they are allocated to and disappear in the American job market. The “Bracero program” seemed to work very well, until it was dismantled in 1964. Through unfettered fraud millions of illegal aliens and their families have arrived here, after the 1986 Immigration Immigration Reform and Control Act (IRCA)

    Eventually there was an increasing apprehension among businesses owners that the provisions within the guide lines of the program ensured the amplification of costs for the imported labor. This fair program mandated an assured level of wages, housing, food and Health care for the workers (to be paid for by the employers) that kept the standard of living above what many from across the border. Farmers and their associated Agrarian colleagues realized they could elevate their profits, by enjoying the extremely hard work in the fields, by hiring illegal aliens who are now exploited. Agriculture didn’t want to pay for the health care or schooling for their children and other benefits, as in the orderly federal “Bracero program.” They prefer the Taxpayers carry the weight of costs for the labor that they hire. Farmers already receive huge subsidies from the U.S. Government. Simple fact the farmers and all the growers of produce got greedy, for even larger profits.

    A new fair migrant worker program will never, ever be possible under the entrenched GOP establishment and many in the Democratic ranks. Illegal Immigration will never end under the elitists Republicans or Democrats who really run the House and Senate. Americans can join forces and stop the overcrowded classroom full of the children of illegal parents. Stop the suffocation in the emergency rooms from foreign nationals crowding the waiting areas. Unable to locate a job; the only reasonable answer is to ‘Self Deport’ and will no longer steal jobs, approved by businesses that hire them. A very large majority of people that come here and fall into a financial backwash owing to the original sponsor, not able to support his immediate or her immediate family members. This becomes a burden to U.S. taxpayers who end up with the yoke of supporting these people through—CHAIN MIGRATION.

    Many politicians have their own revenues in the illegal alien labor market. Only the TEA PARTY will stop the pollution that emanates from Washington and the Congress.

  15. Amnesty is genocide.

    Hispanics pose the greatest national security threat ever faced in America. Which likely explains why the US government needs to distract the peons with the phony war on terror so they can move forward with the real threat: the Hispanic takeover of the US population by the US government viz a viz “immigration”.

    It will ultimately result in annexation of parts of the USA to Mexico or destruction of the sovereign USA with a regional government (which is the goal of the Council on Foreign Relations whose members are the likes of Biden, Clinton, Bush, McCain, Newt, Cheney, and so forth).

    The US government has an European population to replace as soon as possible and they need these victims kept busy with fabricated enemies while the genocide through population replacement viz a viz immigration proceeds apace with its foot to the floor on the accelerator. The sooner that barbarians are herded into the gates, the sooner Marxism will be achieved, and the dissolution of national sovereignty accomplished (another goal of the CFR).

    Mind you the government isn’t interested in bringing in an educated and intelligent population to replace the highly intelligent one it has possessed for so long. That won’t do. It won’t serve the interests of the CFR to have America remain a intellectual heavy-weight. No no. They must flood the nation with people relatively uninterested in education and more apt to not do it well when they are. The oligarchy wants a dumbed-down citizenry who won’t question them so much and bother them with evidence that they are criminals or usurpers.

    There is only one reason why we cannot solve our immigration problem: Legal Hispanic immigrants who we must kowtow to so as not to offend them. There are no groups of Hispanics who support an end to the unfair Hispanic monopoly on our immigration system and its insidious and dangerous imbalance, let alone a complete immigration moratorium for the sake of our security.

    Hispanics as a group are a people thoroughly disloyal to the United States (yes even when they serve in the military) and a people who put their own ethnocentrism above all else even while they accuse others of racism. They are an unseemly people.

    All this is evidence that Hispanics are among the worst of immigrant groups ever to grace our shores and have proven themselves to be unfit to be honored to enter. We have always from time to time barred entrance to certain groups. The reason for this is because some groups are just not fit. That time has come for Hispanics. It might be too late.

    We don’t need one more Hispanic immigrant ever. It will be enough if America as we have known her survives with the disloyal Hispanics we already have.

  16. Dave Francis

    You have many good points. Of course, when the workers come through the legal route, the workers are to be paid the same wages as American farm workers. The problem is enforcement then. Farmers should be severely punished for hiring illegals. That would solve that problem.

    The next problem is who will work the fields. The problem, again, is the farmer, especially the small farmer (ninety percent of farms in the US are “small”). They refuse to mechanize. Mechanization is solution.

    If a farmer cannot afford to mechanize he or she needs to find a new career instead of destroying our civilization with barbarians who cannot stand us, our way of life, our culture, our traditions, our customs, or our form of government.

  17. The law of unintended consequences……You gotta love this red necked state….

    German Mercedes-Benz Executive Arrested Under Alabama’s Immigration Law (Updated)

    By Amanda Peterson Beadle on Nov 21, 2011 at 1:30 pm

    Tuscaloosa Police Chief Steven Anderson told The Associated Press an officer stopped a rental vehicle for not having a tag Wednesday night and asked the driver for his license. The man only had a German identification card, so he was arrested and taken to police headquarters, Anderson said.
    The 46-year-old executive was charged with violating the immigration law for not having proper identification, but he was released after an associate retrieved his passport, visa and German driver’s license from the hotel where he was staying, Anderson said.

    The length of his detainment and the status of his court case weren’t known.

    http://thinkprogress.org/justice/2011/11/21/373334/german-mercedes-benz-executive-arrested-under-alabamas-immigration-law/

    I am just wondering if a man is caught in a cattle car could be charged with pandering….

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