• December 16, 2011

    by Jeremy Leaming

    Just because the Supreme Court upheld Arizona’s law penalizing businesses for hiring undocumented workers, does not mean the state’s controversial, and exceedingly harsh, anti-immigrant law, SB 1070, is destined for approval by the justices.

    In an ACS Issue Brief, Pratheepan Gulasekaram, a Santa Clara University law school professor, explains why the Supreme Court’s narrow opinion in Chamber of Commerce v. Whiting issued in May, will likely have no bearing on the justices’ consideration of SB 1070.

    The law at the center of the Whiting opinion, the Legal Arizona Workers Act (LAWA), requires Arizona businesses to use the federal E-Verify system to ensure their employees are legally in the country, and penalizes those companies that hire undocumented workers. The 5-3 majority in Whiting concluded that Arizona’s E-Verify law was not preempted by the federal Immigration Reform and Control Act, which states that it trumps “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ” undocumented workers. The majority concluded the licensing law, did not run afoul of the IRCA.

    Professor Gulasekaram calls it is a mistake to conclude that Whiting means Arizona’s SB 1070, much of which was invalidated by the U.S. Court of Appeals for the Ninth Circuit, is likely to be found constitutional by the high court.

    Instead Supreme Court precedent stands “for the proposition that state regulation of employment relationships between state employers and unlawfully present persons is permissible, if the federal government has not otherwise prohibited it,” Gulasekaram writes. That precedent, he continues, actually suggests it is most likely that he the high court will “strike down state immigration schemes like SB 1070.”

    Although both Arizona laws are aimed at making life difficult for undocumented persons in the state, only the law dealing with the employer-employee relationship, LAWA, is not preempted by federal immigration law. Indeed, the professor writes, “federal law contemplates the existence of state business-licensing laws through a textual exception in federal immigration law itself. And, even with this express exception, Whiting is neither a unanimous nor far-reaching opinion. At most Whiting stands for the proposition that state business-licensing laws that regulate employers will not reflexively be struck down.”

    But SB 1070, which requires state law enforcement officials to take on duties of federal immigration enforcement officials, is another story.

  • December 12, 2011

    by Jeremy Leaming

    The Supreme Court announced this morning it will wade into yet another high-profile constitutional concern, taking for review Arizona’s controversial anti-immigrant law.

    SCOTUSblog's Lyle Denniston, noting the Court has already agreed to consider the constitutionality of the Obama administration’s signature domestic law, the Affordable Care Act, and redistricting in Texas, the justices have now taken on “the searing constitutional – and political – controversy over state power to strictly limit the way undocumented immigrants live their lives in the U.S.”

    Denniston notes, Ariz. Gov. Jan Brewer (pictured) is arguing that her state’s law, S.B. 1070, is a “major test of the sovereignty of the states to make their own social policies under traditional ‘police power’ principles.’” The Obama administration, which has also challenged parts of Alabama’s stringent anti-immigrant law, argues that the Arizona law undermines the federal government’s role in setting immigration policy. (Article I, Section 8 of the Constitution states that Congress has the power to “establish an uniform Rule of Naturalization," ….)

    Earlier this year, the U.S. Court of Appeals for the Ninth Circuit blocked several provisions of S.B. 1070, including one that “allows police to arrest without a warrant any person for whom the officer has ‘probable cause to believe’ that the individual has committed any crime, anywhere, that would make that individual subject to being deported,” Denniston writes. Additionally, the Ninth Circuit blocked provisions that require state police to attempt to determine a suspect’s immigration status upon arresting them, that make it a crime to not carry immigration documentation and a misdemeanor for undocumented workers to seek and apply for work.

    Justice Elena Kagan recused herself in the case, Arizona v. United States, apparently because she was involved in the handling of the case when she was U.S. Solicitor General. If, as The Huffington Post’s Mike Sacks notes, the justices split 4-4, the Ninth Circuit opinion would stand.

    Karen Tumlin, an attorney with the National Immigration Law Center, applauded the high court for taking the case.

    “This case boils down to a question of whether Arizona can mandate that its officers interrogate individuals about their immigration status and attempt to enforce civil immigration law,” Tumlin told ABC News.

  • November 9, 2011

    by Jeremy Leaming

    Right-wing policymakers triumphed impressively last year taking control of many statehouses from coast to coast. Many of those lawmakers were ushered into office backed by Tea Party fervor, and lots of money from the likes of Charles and David Koch, the billionaire brothers, who head Koch Industries and espouse efforts to radically constrain government.

    A year after their sweeping victories, however, some of their most outrageous policies were shelved by large numbers of voters last night.

    The frontal assault on public sector workers in Ohio, as noted by the Plain Dealer, was squashed by voters, 61 percent to 39 percent. In a guest post for ACSblog, Ohio State University law school professor Dan Tokaji noted that SB 5, which gutted collective bargaining rights of public workers, was a “center of Governor Kasich’s first year in office.” Tokaji said the defeat of the anti-workers’ rights law was not only a major setback to the Republican governor, but also has ramifications outside the Buckeye state. If the law would have survived, Tokaji said it would have dealt a “crippling blow to organized labor, drastically curtailing its political influence.”

    Mississippi provided a mixed bag, defeating a radical anti-abortion measure, but supporting a stringent new voter registration law. As noted by The New York Times, perhaps one of the night’s “biggest surprises” was the state’s rejection of a proposed constitutional amendment that would grant legal rights to embryos, effectively outlawing abortion and other forms of birth control in the state. That policy was advocated by a Religious Right group called Personhood USA, which says it is pushing similar measures all over the country, and doing so, in part, “to glorify Jesus Christ in a way that creates a culture of life so that all innocent human lives are protected by love and by law.”

    Following defeat of the measure, Keith Ashley in a blog post for Personhood USA said the group understands the difficulty of “changing a culture,” and that it vows “to continue on this path towards affirming the basic dignity and human rights of all people ….”  

    Nancy Northup, president and CEO of the Center of Reproductive Rights, hailed the defeat of the Personhood Amendment, saying in a press statement, “Outlawing medical services commonly used and relied upon by Americans in their personal lives runs completely counter to the U.S. Constitution, not to mention some of our most deeply held American political traditions and values.”

  • October 5, 2011

    by Jeremy Leaming

    One of the nation’s harshest anti-immigrant laws is proving extremely disruptive to families, and nettlesome to enforce.

    Alabama is not alone in implementing ill-conceived immigration policy. A federal appeals court has invalidated much of Arizona’s SB 1070. But Alabama’s effort may be the leading example of a poor attempt at reform of immigration policy.

    The New York Times reported recently that after a federal judge upheld most of the Alabama law, an “exodus of Hispanic immigrants,” was triggered. In Albertville, Ala., the newspaper reported that undocumented immigrants in mass have left their homes and yanked their children from public schools. The Alabama law, among other things, requires public school officials to verify immigration status of children and parents and report suspected undocumented people to the federal government.

    In an editorial, “Alabama’s Shame,” The Times blasts the law as turning the state into the most “hostile” places for undocumented people. Since taking effect, the editorial says, “Volunteers on an immigrant-rights groups’ hot line said that since then they have received more than 1,000 calls from pregnant women afraid to go to the hospital, crime victims afraid to go to the police, parents afraid, to send their children to school.”  

    Beyond the troubling impact on families, the law is already proving to be difficult to enforce. Even Fox News noted the difficulty, “Alabama’s tough new immigration law is already proving to be quite complicated, even for law enforcement officials. The police chief of a small town in the Appalachian foothills of Alabama didn’t know what to do about checking the immigration status of a Hispanic man his department recently arrested on an old warrant.”

    In an ACS Issue Brief released this week, law professor Pratheepan Gulasekaram says supporters and opponents of strict immigration state laws, such as Arizona’s, do agree that “U.S. immigration policy needs fixing.” But reform is reached is the “real problem.”

    Gulasekaram writes that strict “enforcement advocates” start from drawing on a flawed conclusion.

    He writes:

    Migration has been, and always will be, a fact of human existence. Human movement to find work or reunite with family would be unremarkable, but for the legal construction of political borders between nation-states. But, these man-made demarcations have never, and will never, stem the tide of migrants in search of work and improved opportunities for themselves and their families. Further, the United States relies on, and requires, significant migration to fill its economic needs in both high-skilled and labor sectors. Increased border vigilance and enforcement, combined with a mismatch between actual labor needs and lawful entry visas, has only led to increases in undocumented population, greater number of border deaths, and increases in human smuggling prices paid to cartels and coyotes. These are the hard and uncontrovertable economic, social, and human facts.

  • September 14, 2011
    Video Interview

    This video interview is part of an ACSblog Constitution Week Symposium. By Nicole Flatow.

    Attempts to undo the constitutional guarantee that those born in the United States are citizens are “flatly and incontrovertibly unconstitutional and completely at odds with our constitutional history,” Georgia State University law professor Neil Kinkopf tells ACSblog during a video interview.

    Kinkopf traces the history of birthright citizenship in the United States, noting that the common law understanding was that all residents born here were citizens.

    He continues:

    That understanding was upset in the worst decision in the history of the Supreme Court, Dred Scott, when Chief Justice Taney ruled that descendants of Africans cannot be citizens and cannot have rights that a white person is bound to respect.

    It was the rejection of Dred Scott that led to the adoption of the Fourteenth Amendment and that led to the first sentence of the Fourteenth Amendment, which expressly puts into the Constitution birthright citizenship. It’s a fundamental commitment of our nation. It constitutes us as a people -- that we are not a country club, that everyone who’s born here is a citizen of the United States, and that our government cannot distinguish among us.

    Watch the video interview below.