• August 29, 2012

    by Jeremy Leaming

    In its ruling yesterday rejecting several new Texas voting districts, a federal court in Washington, D.C. blasted the efforts of Texas lawmakers as seeking to suppress the vote of Latinos.

    Janell Ross for The Huffington Post noted that the federal court’s opinion provided a “sharply worded” and exhaustive account of “Texas officials’ plans to draw districts for four new congressional seats created by the state’s booming Latino population that were almost certain to elect Congress members preferred by white Republican voters. And it’s a ruling that should serve as a cautionary tale, according to voting rights advocates.”

    Nina Perales, vice president of litigation at the Mexican American Legal Defense Fund (MALDEF), told Ross, “For other states thinking of doing anything to dilute the [power] of their minority voters or their fast-growing minority populations, this not just a warning. This is a warning in the strongest terms.”

    Indeed as noted on this blog yesterday, the U.S. District Court for the District of Columbia found that Texas lawmakers failed badly in proving that their redistricting plans did not violate Sec. 5 of the Voting Rights Act of 1965. The act applies to states and localities with a history of discriminating against classes of voters, and requires those jurisdictions to get preclearance for redistricting from the Department of Justice or a federal court.

    In State of Texas v. U.S. the federal court said Texas failed to show that its new voting maps would not discriminate against voters on “account of race, color, or membership in a language minority group.”

    MALDEF, which intervened on behalf of Latino voters to challenge the state’s new voting schemes, said the federal court had found the state’s congressional plan was created with “discriminatory racial intent,” and its State House redistricting plan undercut “voting strength,” while the state Senate redistricting plan “was enacted with discriminatory racial intent.”

  • August 24, 2012
    Guest Post

    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.

  • August 22, 2012
    Guest Post

    By Karen Tumlin, managing attorney for the National Immigration Law Center

    Taken together, the 11th Circuit Court of Appeals decisions on the cases against Alabama and Georgia’s immigration laws represent a few additional nails in the anti-immigrant law coffin. Although the court decided not to block for now the damaging provisions authorizing police to demand “papers” from those they suspect of being in the country without authorization, the majority of Alabama’s law has been stopped, and one damaging provision of Georgia’s law will not be allowed to take effect.

    Georgia’s law, which was challenged only by civil rights organizations, is narrower in scope than Alabama’s, but was written with the same goal in mind: to make life so miserable for immigrants and their families that they leave the state. HB 87, as Georgia’s law is known, would have created a series of state crimes to penalize those who house or drive with undocumented immigrants. From a practical perspective the impact of this law is clear: a U.S. citizen son of an undocumented mother, for example, would commit a criminal act if he were to take his mother to the grocery store to buy milk. The 11th Circuit rightly recognized that Georgia overstepped its bounds by creating a series of crimes that do nothing more than criminalize everyday neighborly acts in a domain that remains in exclusive federal territory.

    Alabama’s law, HB 56, has been called “Arizona’s SB 1070 on steroids,” and for good reason.

  • August 9, 2012
    Deportation Law and the New American Diaspora
    Daniel Kanstroom

    By Daniel Kanstroom, Professor of Law at Boston College Law School

    Good news: The major U.S. immigration enforcement agency has reported that “The border has been secured.” Bad news: That was in 1955 and nothing similar has been repeated since. Worse news: INS also recognized that “the prevention of illegal entries…is, in the long run, more economical and more humane than the expulsion process.” Worst news: The undocumented population now approximates 12 million. Despite recent Administration initiatives aimed at so-called “Dreamers” (the most innocent and the “best and the brightest” among the undocumented), massive deportation enforcement remains the dominant reality. Most frustrating news: No set of public policy issues is as widely misunderstood and as intractably resistant to rational solution. A virtual consensus among experts in the field as to comprehensive visa reform including work visas that match the realities of the labor market, better border control, some sort of legalization program for those already here, and flexible future enforcement discretion has yielded no legislation.

    Meanwhile, the United States continues a radical deportation experiment of unprecedented size and ferocity. The experiment has now continued for more than a decade. It is time to consider what it has accomplished and what it has wrought. The story is grim: deportation has cost much, achieved little, and caused tremendous pain and suffering. It is also widely misunderstood. Few realize, for example, that many deportees are not “illegal aliens.” All over the world, hundreds of thousands -- maybe millions -- of former U.S. legal permanent residents, people with green cards, families, and jobs in the United States find themselves scattered in an odd, unplanned new American diaspora. 

    Deportation has developed into a huge, expensive, and dangerous enterprise. If we count deportation events (including various mechanisms for what are technically called “removals” and “returns” through which a person is compelled to leave U.S. soil by government agents) over the last twenty years, the total number is around 25 million

    How did this experiment begin?

  • June 27, 2012
    Guest Post

    By Pratheepan Gulasekaram & Karthick Ramakrishnan. Prof. Gulasekaram teaches Constitutional and Immigration Law at Santa Clara University, and Prof. Ramakrishnan teaches in the Political Science department at University of California, Riverside.  The empirical work referenced in this post is part of a co-authored book project exploring the political genesis and legal implications of state and local immigration laws.

    Defiant in his Arizona v. U.S. dissent, Justice Antonin Scalia posits a surprising theory of immigration law, arguing that even in modern constitutional interpretation, an individual state can exclude persons from entering its borders and can have its own immigration policy. His novel theory appears to rest on assumptions about the demographic “facts” of unauthorized immigration and the public policy problems ostensibly faced by Arizona.  He confidently maintains that the state “bears the brunt of the country’s illegal immigration problem,” and follows that suggestion with several other claims regarding the “siege” that citizens may feel when illegal immigrants invade property, use social services, and endanger citizen lives.

    Quite rightly, Judge Richard Posner of the Seventh Circuit took Scalia to task for these unsupported statements in a recent article for Slate.

    But Scalia is not alone in making these unproven assumptions about the relationship between immigration-related demographic change, the public policy concerns created by that change, and the necessity of state and local response. Indeed, both former Arizona governor Janet Napolitano (now, Secretary of the Department of Homeland Security) and her successor Jan Brewer cited the unique issues faced by Arizona as justifications for the state’s mandatory E-Verify law and SB 1070.  Even Justice Anthony Kennedy, in the first sentence of his majority opinion in Arizona, presumes that the state enacted SB 1070 to address the “pressing issues” related to a large population of undocumented immigrants.