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.