Private: A Bad Day at the Office for Immigration Restrictionists

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.

In a novel holding, the Eleventh Circuit struck down as preempted Alabama and Georgia laws adopting “mirror images” of 8 U.S.C. § 1324(a), which criminalizes transporting, inducing to enter the United States, concealing, harboring or shielding from detection undocumented noncitizens. Part of the problem is that the legislatures failed to ensure that their versions actually mirrored federal law. The Georgia law made criminal things that Congress chose not to prohibit, namely, moving from another state to Georgia: “Once inside the territory, though, it is not (and has never been) a federal crime for a person to encourage an alien to migrate to another state.” Similarly, the Alabama law’s broad conspiracy provision appeared to hold liable the undocumented person being transported, when the federal version did not. Of the ten state versions of 1324(a) on the books, none are identical to the federal statute, nor to any other; penalties for violation in various jurisdictions, depending on aggravating factors, range from one year to death.

But the problem was more than lack of conformity to federal law. The Eleventh Circuit concluded that the Immigration and Nationality Act “provides a comprehensive framework to penalize the transportation, concealment and inducement of unlawfully present aliens” which did not invite “additional or auxiliary regulations.” The court noted that state enforcement of the state laws was “not conditioned on respect for the federal concerns or the priorities that Congress has explicitly granted executive agencies the authority to establish.” Independent state immigration crimes are problematic for these reasons even if precisely identical to federal law.

Invalidation of the mirror image statutes is significant, first because in the Arizona litigation, the district court upheld the Arizona version of this statute, and the United States did not appeal. It is also important because it calls into question similar laws in at least eight other states.

Other innovative statutory methods of deterring immigration were also invalidated. The Eleventh Circuit struck down Section 28 of Alabama’s HB 56, which required investigation of the immigration status of school children. Students were required to present birth certificates. If the child was born outside the United States, could not produce a birth certificate, or if the parents were not lawfully present, the parents were asked to prove the child’s immigration status. If they failed to do so, the child’s name would be placed on a state list, which could be shared with other government agencies. The court concluded that Section 28 deterred school attendance by the students who would be placed on the list, in violation of their equal protection right to attend school recognized by Plyler v. Doe.

The court struck down Section 16 of HB56, which denied a tax deduction for employment of unauthorized works, and Section 17, which declared it a discriminatory practice to hire an unauthorized noncitizen over an authorized worker. Both of these, according to the court, were expressly preempted by 8 U.S.C. 1324a(h)(2).

Finally, the court invalidated Section 27 of the Alabama law, which renders unenforceable most contracts between a party and an unauthorized noncitizen. “Essentially, the ability to maintain even a minimal existence is no longer an option for unlawfully present aliens in Alabama.” The court was “convinced that Alabama has crafted a policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state.” As a disguised form of deportation, Section 27 was preempted. It was also preempted because “section 27 conflicts with Congress’s comprehensive statutory framework governing alien removal.” The court explained that Alabama offered none of the provisions for relief available under the Immigration and Nationality Act, and operated independently of the discretion that Congress granted the executive branch of the federal government over the administration of immigration laws.

Two narrow provisions of the Alabama law survived. Section 8 prohibited enrollment in public postsecondary educational institutions; the district court struck down the law, but based on a subsection that was since repealed. Accordingly, the appeal was dismissed as moot. Presumably, challenges based on other grounds may be available in another suit. 

The court also upheld Section 30, which denies undocumented people professional, commercial, and business licenses, motor vehicle license plates, driver’s licenses and non-driver identification cards. The court found itself unable to identify any federal policy or statute with which Section 30 conflicted or interfered.

One reading of these cases, like Arizona v. United States itself, is that state regulation — other than with respect to its own benefits and activities, or where expressly authorized by federal law — is almost always invalid. If the law is not the same as a federal provision, it is inconsistent with the choices made by Congress. If it is the same as the federal statute, then in violation of the executive responsibility to carry out the laws and the discretion granted by Congress, state action would be inconsistent with federal enforcement policies. Look for certiorari petitions in all three cases.

Civil rights, Constitutional Interpretation, Criminal Justice, Equality and Liberty, Immigration, Racial Justice, Separation of Powers and Federalism, Supreme Court