by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University, and author of the ACS Issue Brief Restrictive State and Local Immigration Laws: Solutions in Search of Problems.
Since the Supreme Court decided United States v. Arizona last summer (and Whiting v. Chamber of Commerce in 2011), circuit courts have been busy applying the opinion to immigration regulations percolating through the federal courts in their respective jurisdictions. The Third Circuit in Lozano v. Hazleton invalidated the Hazleton, Pennsylvania employment and rental ordinances; the Fourth Circuit in United States v. South Carolina invalidated sections of South Carolina’s immigration enforcement scheme; the Fifth Circuit in Villas at Parkside Partners v. Farmers Branch invalidated the Farmers Branch, Texas rental ordinance; and the Eleventh Circuit invalidated sections of Alabama’s and Georgia’s immigration enforcement schemes. These decisions reduce some of the legal uncertainty surrounding the recent proliferation of subfederal immigration legislation. Notably, however, they also leave some important questions unanswered. And, they do so in a way that is doctrinally precarious.
First, based on the Arizona Court’s decision not to enjoin §2(B) of SB 1070, a few provisions of state enforcement schemes in South Carolina, Alabama, and Georgia were left intact. Following Arizona’s lead, the Northern District of Georgia (on remand from the Eleventh Circuit), rejected a facial challenge to § 8 of the state’s 2011 Illegal Immigration Reform and Enforcement Act, which allows local law enforcement officers to investigate the immigration status of individuals if the officials have probable cause that the individual committed a crime and if that individual cannot produce adequate proof of lawful status. Fourth Amendment or other constitutional challenges to that provision must now proceed on an as-applied basis, similar to the ongoing litigation challenge to SB 1070’s § 2(B). Litigation on these provisions will take some time to resolve the important racial profiling and discrimination concerns implicated by local law enforcement participation in immigration matters.