Contempt of Court? Feds Silent on Suits Over State Immigration Laws

Alabama joins Arizona, Indiana, Georgia and Utah in being sued over harsh immigration enforcement laws. But the Justice Department has gone silent.

By Julianne Hing Jul 12, 2011

Just as quickly as states have been signing their restrictionist immigration bills into law, so have immigrant and civil rights groups been responding by filing lawsuits to challenge them. Last week, on July 8, a coalition of such groups, led by the National Immigration Law Center and the ACLU, filed a suit against Alabama’s HB 56, widely considered the harshest anti-immigrant state law on the books today.

It is the fourth lawsuit to be filed against a state immigration bill since Arizona’s SB 1070 became law last year. Immigration enforcement laws from Utah, Indiana, and Georgia modeled on SB 1070 have all been challenged in the courts, and the courts have blocked provisions of all these laws from going into effect.

The lawsuit against Alabama uses similar reasoning as the other cases, and charges that HB 56 violates the supremacy clause of the Constitution, which says that the federal government, not the states, has the sole right to create and enforce immigration law. HB 56 criminalizes nearly every aspect of life for immigrants, making it illegal for undocumented immigrants to drive, get a ride from someone, work, rent housing, or go to public school. HB 56, like SB 1070, also allowed law enforcement to question and investigate the immigration status of anyone an officer had "reasonable suspicion" to believe was in the country without legal status. It also mandated that Alabama businesses adopt E-Verify, a controversial electronic work authorization program. Alabama’s law also went so far as to ask Alabama public schools to track their students’ immigration statuses, and bars undocumented immigrants from enrolling in any state university or college.

"HB 56 is reminiscent of the worst aspects of Alabama’s history in its pervasive and systematic targeting of a class of persons through punitive state laws that seek to render every aspect of daily life more difficult and less equal," said the complaint.

The question at this point is whether, or when, the Department of Justice will step in. Since successfully challenging Arizona’s SB 1070 last year–the Ninth Circuit Court of Appeals upheld a lower court’s ruling that SB 1070 would likely be found unconstitutional in April–the DOJ has so far not taken any action to challenge the handful of other immigration bills that were inspired by SB 1070. But the feds have not ruled out future action, either.

"The Department continues to review immigration-related laws that were passed in Utah, Indiana, Georgia, Alabama and South Carolina," said Xochitl Hinojosa, a spokesperson with the Department of Justice.

"Setting immigration policy and enforcing immigration laws is a federal responsibility, and to the extent we find state laws that interfere with the federal government’s enforcement of immigration law, we are prepared to bring suit."

There is still immense pressure on the DOJ to act.

"If they don’t challenge the Alabama law I don’t see them challenging any law," Kevin Johnson, a professor of immigration law and dean of the UC Davis Law School, said of the choice in front of the DOJ right now. "The Alabama law is the broadest and most far reaching state immigration law, and it includes the kinds of provisions that they challenged in Arizona, like the reasonable suspicion requirement and the requirement of state and local police to investigate people’s immigration statuses."

Johnson added that the legal arguments against Alabama’s HB 56 and other state anti-immigrant laws would be different from some of the other political and moral arguments. "If they do anything, they are going to be very deliberate, and very careful in the kinds of claims they make. In Arizona they didn’t make any claims of racial discrimination, it was these bland federal preemption kinds of claims."

"But if they’re not going to do it in Alabama they’re not going to do it anywhere."

"[HB 56] revisits the state’s painful racial past and tramples the rights of all Alabama residents," Mary Bauer, legal director for the Southern Poverty Law Center, said in a statement. "It should never become the law of the land."