• April 25, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School. She is the author of a forthcoming article in the U.C. Davis Law Review titled "Reverse-Commandeering." 

    As the Supreme Court heard oral argument in Arizona v. U.S., one of the main legal questions it considered is this: Whether Arizona’s Senate Bill 1070 (SB 1070) is preempted by federal immigration law under the Supremacy Clause. This is a statutory-driven inquiry that misses the constitutional mark. The more relevant question is this: Whether SB 1070 poses a threat to the vertical separation of powers. 

    Increasingly, immigration federalism laws like SB 1070 —  state and local attempts to control unwanted migration — exemplify the inverse of the problem posed by the impermissible commandeering of states under the Tenth Amendment.  Specifically, the recent tidal wave of thousands of immigration control efforts proposed by state and local governments can best be characterized as “reverse-commandeering” laws. Setting migration policy at the national level, like establishing a national currency, falls within the sole power of the federal government. Reverse-commandeering by the states is an effort to usurp the federal government’s sole prerogative. This growing movement represents an attempt to control the terms of what federal resources and officers must be appropriated to accommodate a myriad of state immigration enforcement programs. It is a deliberate attempt to skew the immigration enforcement power in favor of the states. 

    In the years since Congress’s failure to pass comprehensive immigration reform legislation in 2006-07, state and local governments have considered over 7,000 immigration-related proposals. In the first quarter of 2011, 1,538 immigration bills and resolutions were considered in all 50 states and in Puerto Rico. By December 2011, 42 states and Puerto Rico had enacted 197 new laws and 109 new resolutions. A tiny handful of the most controversial state laws, such as the Legal Arizona Workers Act (LAWA) — the subject of the Court's recent decision in Chamber of Commerce v. Whiting — and SB 1070 — the subject of the Court's current consideration in Arizona v. U.S. — have received challenges in federal court. Consequently, such challenges address only the tip of an immigration federalism iceberg. 

  • April 23, 2012
    Guest Post

    By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law.  Professor Gulasekaram teaches Constitutional Law and Immigration.  He is currently working on a book with Prof. Karthick Ramakrishnan (political science, U.C. Riverside) on the political and legal dynamics of immigration federalism.

    Pro-immigrant advocates – and I count myself among them – will be anxiously listening to oral argument in U.S. v. Arizona, searching for clues as to whether the Court will uphold the preliminary injunction against Arizona’s now-notorious SB 1070.  Riding the momentum of district court and appellate court victories, and with the clear weight of precedent and academic opinion on its side, the federal government’s legal case appears sound.  For many progressives and immigrant advocates who have been wearily following the recent rise of state and local regulations the case appears to offer the promise of a final resolution to the question whether subfederal jurisdictions can engage in immigration enforcement.

    Except, it likely will not provide this anticipated resolution.  While a victory for the federal government could establish powerful Supreme Court precedent against subfederal participation, there are at least four reasons why Arizona will not end the contentious national debate and policy battle over state and local involvement in immigration regulation.  First, because Justice Kagan has recused herself, there exists a distinct possibility that the case could result in a split 4-4 vote, producing no majority opinion.  Second, the district court never enjoined the provision of SB 1070 that announced the state’s intention to make “attrition through enforcement” the policy of the state.  Third, the political and legislative dynamics producing this recent proliferation of state and local laws suggest that restrictionist policy activists will not be deterred by the Court’s decision.  And, finally, regardless of the result in the case, subfederal jurisdictions can, and in some cases must, participate in enforcement programs condoned by federal law.  I briefly elaborate on each of these points below.

  • April 23, 2012
    Guest Post

    By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and 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.

    Arizona v. United States, being argued Wednesday, will decide whether SB1070 is preempted by federal law.  We have previously co-authored papers about its complex provisions, and various legal doctrines that might be brought to bear on it, from the non-delegation doctrine to double jeopardy. But Arizona v. United States is, ultimately, a simple case.  Here is what we hope the Supreme Court understands.

    SB1070 is preempted -- it is unconstitutional -- because it usurps powers that the Constitution, the Immigration and Nationality Act, and other federal statutes assign exclusively to the federal government. The Framers, Congress and the Court have consistently recognized that the security of the nation and fairness to non-citizens require that decisions and enforcement be under federal direction and control.

    Four provisions of SB1070 are at issue. Three provisions involve direct immigration enforcement.

    • Section 2 requires that state and local police investigate the status of suspected undocumented non-citizens who have been detained;
    • Section 6 authorizes police to arrest non-citizens believed to be deportable; and
    • Section 3 criminalizes the presence of non-citizens in Arizona if they have not registered under federal law.

    The fourth provision (§ 5) criminalizes working in Arizona without authorization, which is not a crime under federal law.

  • April 6, 2012

    by Jeremy Leaming

    SEIU, which represents millions of workers nationwide and more than 100,000 in Alabama, has lodged a complaint with the International Labor Organization (ILO) of the United Nations urging it to press the federal government to move on immigration reform.

    SEIU and its affiliate, the Southern Regional Joint Board of Workers United, state in their complaint before the U.N. that Alabama’s anti-immigrant law, H.B. 56, “denies fundamental civil rights to immigrants and minorities and impacts trade union activities between and among union members, inhibiting freedom of association ….”

    In a press statement announcing the complaint, SEIU says, “Only federal legislative reform can stop the proliferation of laws like Alabama’s H.B. 56 that penalize unauthorized immigrants who apply for jobs or work; fine anyone who transports or harbors an undocumented immigrant; and prevent courts from enforcing contracts that involve a person without legal status …. Such provisions jeopardize the ability of workers to form and join trade unions and to bargain collectively.”

    SEIU’s complaint before the U.N. is available here.

    Authors of Alabama’s anti-immigrant law, which The New York Times has dubbed the harshest in the nation, are pushing some revisions to it that aides to the state’s governor claim will significantly improve its treatment of undocumented immigrants. (The federal government has challenged in court several provisions of the law, saying they interfere with the government’s effort to create one national law on immigration. In March, a federal appeals court blocked some of the law’s provisions.)

    Brian Lyman, reporting for the Montgomery Advertiser, says the proposed changes to H.B. 56, sponsored by state Rep. Micky Hammon, “toughen some provisions while significantly scaling back others.”

    For example, Lyman notes, a proposed revision would allegedly soften the law’s controversial section requiring public school officials to check and report on the immigration status of students. A proposed revision would require “state schools superintendent to file an annual report on the fiscal impact of undocumented” immigrants on the school system.    

    Ala. Gov. Robert Bentley, in a press statement, however, said the proposed revisions would not undercut the “essence of the law …. Anyone living and working in Alabama must be here legally.”

    Civil rights and other public interest groups have argued that H.B. 56, and other harsh immigration laws, such as Arizona’s S.B. 1070, allow authorities to engage in racial profiling and discrimination against people based on how they look and speak. Those groups, moreover, point out that the individual state laws can create a confusing patchwork of laws that endanger constitutional freedoms.

  • March 20, 2012
    Guest Post

    By Tomas Lopez, Law Fellow, Southern Poverty Law Center. Mr. Lopez will be the featured speaker at a March 21 event on the state of Ala.’s anti-immigrant law.

    Next month, the Supreme Court will hear arguments in Arizona v. United States, the case challenging Arizona’s SB 1070, the “attrition through enforcement” law that seeks to drive undocumented immigrants from the state.

    Many people will pay attention, but few will do so more closely than those of us in Alabama. Here, SB 1070’s ideas metastasized into HB 56— a law that goes even further than Arizona’s in making the state simply inhospitable for undocumented immigrants. The law acutely harms the state’s most vulnerable people, its economy, and its reputation. Alabama’s experience exposes the reality of the anti-immigrant laws now at issue in Arizona and elsewhere: they largely fail to deliver on their promises and instead render needless damage and suffering.

    I’m a part of a team at the Southern Poverty Law Center, which along with our co-counsel and allies, is challenging HB 56’s constitutionality. There is a lot for us to challenge. Alabama’s law reaches both more broadly and more deeply than its counterparts from other states. Like SB 1070, HB 56 criminalizes the failure to carry alien registration papers and authorizes law enforcement officers to verify the immigration status of any individuals stopped. However, it also includes provisions that:

    • Prohibit and criminalize “business transactions” between undocumented immigrants and state agencies;
    • Instruct courts to regard any contract to which an undocumented person is a party as unenforceable;
    • Denies bail to detained undocumented immigrants; and
    • Requires schools to inquire into the immigration status of every newly enrolled student and his or her parents.