By Gabriel J. Chin and Marc L. Miller. Chin is Professor of Law at the University of California, Davis, School of Law. Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. They authored “The Unconstitutionality of State Regulation of Immigration through Criminal Law,” which recently appeared in the Duke Law Journal and addresses these arguments, and others, in more detail. The views expressed are solely those of the authors.
On August 20, the other shoe dropped. After Arizona’s systematic defeat in Arizona v. United States, rejecting the most important parts of SB1070, the question became how courts would treat the many other state laws on the books dealing with immigrants. If a trio of cases from the Eleventh Circuit is any indication, federal courts will read Arizona v. United States as severely limiting state authority to legislate in the area of immigration.
The three opinions were written by the same panel, and largely affirmed or expanded injunctions issued by district courts. Two cases involved Alabama’s HB56, Hispanic Interest Coalition of Alabama v. Governor of Alabama and United States v. Governor of Alabama. The third case, Georgia Latino Alliance for Human Rights v. Governor of Georgia, examined Georgia’s HB 87. The laws had some of the same features as SB1070, and the Eleventh Circuit necessarily treated those as did the Supreme Court. The decisions allowed Georgia and Alabama to investigate the immigration status of people stopped or arrested, but, like the Supreme Court, left open the possibility of as-applied challenges based on racial profiling or unlawful seizures. The Eleventh Circuit also struck down Alabama’s prohibitions on undocumented people seeking work or failing to carry immigration documents, just as the Supreme Court had.