The Legal Case Against Alabama’s Worst-in-the-Country Immigration Law

The lawsuits against state-level efforts at immigration enforcement are piling up. Here's how advocates plan to challenge the one they've called the worst of the bunch.

By Julianne Hing Jun 21, 2011

When Alabama’s HB 56 was signed into law it was universally condemned by immigrant and civil rights groups as the harshest anti-immigrant state law to be passed. And as the lawsuits pile up–legal challenges to Arizona’s SB 1070 have been followed by lawsuits against the Utah Compact, Indiana’s SB 590 and most recently, Georgia’s HB 87–immigrant rights groups have vowed to file suit against Alabama’s, too.

"It’s a wish list of restrictionist immigration provisions at the state law level," said Kevin Johnson, dean of the law school at the University of California, Davis. Alabama’s HB 56 combines the harshest provisions of anti-immigrant ordinances and state laws that have been passed in recent years.

Alabama attempts to criminalize every aspect of life for immigrants by making it illegal for undocumented immigrants to work, rent housing, go to school and get a ride in the state. Like its predecessor, Arizona’s SB 1070, the Alabama law also makes it a criminal offense to be in the state. Under the new law, contracts that undocumented immigrants enter into will not be enforceable. It also includes an anti-immigrant iteration of another popular GOP policy point: a voter ID provision that requires all voters supply proof of their citizenship.

The question on everybody’s minds is whether the Department of Justice will go after Alabama, and the other states that are passing their own immigration laws, the same way it has gone after Arizona. The DOJ has thus far withheld comment on potential litigation against these other states.

With or without the feds, immigrant and civil rights groups have vowed to challenge Alabama. I spoke with Johnson and Vivek Malhotra, advocacy and policy counsel for the ACLU, about some of the law’s provisions. The ACLU, together with a coalition of other groups, including the National Immigration Law Center, has joined suits challenging the laws in Alabama, Indiana, Georgia, Utah and, of course, Arizona. Here are a few of their core arguments:

The Alabama law requires public schools to ask students who try to enroll in K-12 classes about their immigration status, and to track and report data to the state board of education and the state legislature. Schools will have the right to report students and their parents who are undocumented. "This flies in the face of the Supreme Court decision in 1982, Plyer v. Doe, which upheld the right of every child to access public education regardless of their immigration status," Malhotra said. 

Malhotra added that the Department of Justice and the Department of Education have recently issued a joint guidance to remind states about that 1982 decision, after reports of school districts trying to collect information surfaced. The guidance told states that when schools ask students about their immigration status, it tends to have, Malhotra said, "a chilling effect," which discourages students from enrolling in public school, which is a violation of all students’ equal protection rights.

Johnson noted that the law’s K-12 ban was slightly different from the law that Plyer v. Doe struck down. "I haven’t seen this kind of approach taken, where schools will begin the collection of information," Johnson said. "I think that’s open to litigation."

The Alabama law bans undocumented immigrant students from enrolling in any state college or university. "I’m not aware of any state that has a similar statewide ban," said Johnson. The Plyer v. Doe ruling didn’t extend to higher education, though. The arguments against the higher education ban are more moral and economic, Malhotra said. 

"Our view is that blocking access of promising undocumented students to public colleges is just mean-spirited, and doesn’t make much economic sense for a state when they’ve invested so much in these children in the K-12 education," he said. Immigrant rights groups have also warned that Alabama’s higher education ban could harm students who are not undocumented.

The law makes it illegal to rent housing to undocumented immigrants. Hazleton, Penn., became famous for pioneering restrictive housing ordinances targeting undocumented immigrants, and the ACLU and other groups successfully challenged the town on a similar law. Two weeks ago though, the Supreme Court asked the Third Circuit to reconsider that ruling in light of its recent ruling on an Arizona employer-sanctions law, because both the Hazleton and the Arizona case dealt with employer sanctions. 

"I don’t think it has any bearing on the larger issues in Hazleton, especially on the question of whether rental housing is preempted by federal law," Malhotra said.

Like Arizona’s SB 1070, Alabama’s HB 56 turned police officers into federal immigration authorities by requiring them to investigate immigration status if they pull someone over and have "reasonable suspicion" to believe a person is undocumented. Immigrant rights groups warn that this provision makes racial profiling far too easy for law enforcement officers. The law also allows Alabama to hold people in custody while authorities determine their immigration status. 

Immigration rights advocates have challenged similar provisions in Arizona and Utah’s laws by arguing that states do not have the right to make and enforce their own immigration laws under the Supremacy Clause of the Constitution, which says that immigration enforcement falls under the purview of the federal government.

The Alabama law makes certain contracts that undocumented immigrants sign unenforceable. Johnson said this is likely aimed at diluting the legal rights of undocumented immigrants who want to file suit if, say, they’re denied wages that they’ve been promised or payment for goods and services they’ve sold and want to bring a lawsuit against someone else. 

"The aim is to make it economically not viable for immigrants to do anything," Johnson said. Both he and Malhotra said there were possible preemption issues with this provision.