UPDATE 2:45pm ET: The coalition of civil rights groups, including ACLU, the National Immigration Law Center, the Southern Poverty Law Center and the Hispanic Interest Coalition of Alabama, has filed an emergency request with the 11th Circuit Court of Appeals to block provisions Judge Blackburn failed to enjoin from going into effect while her decision is appealed.
Alabama has prevailed where four other states which enacted anti-immigrant state laws, including Arizona, did not. Today Alabama law enforcement officers will have the right to question and detain anyone they suspect may be an undocumented immigrant, Gov. Robert Bentley said, after a federal judge upheld key provisions of the state’s immigration law on Wednesday.
Yesterday U.S. District Judge Sharon Lovelace Blackburn returned her ruling for the Department of Justice’s challenge to Alabama’s recently passed HB 56, widely recognized as the harshest state immigration law on the books. Blackburn blocked several parts of the law, but let stand provisions that no other judge considering these laws so far has, including provisions that give law enforcement officers unprecedented power to act as immigration agents.
"Today is a dark day for Alabama," Mary Bauer, the Southern Poverty Law Center’s legal director, said Wednesday in a statement. "This decision not only places Alabama on the wrong side of history but also demonstrates that the rights and freedoms so fundamental to our nation and its history can be manipulated by hate and political agendas – at least for a time."
Blackburn blocked a provision that would have made it illegal for undocumented immigrants and other non-citizens from enrolling in Alabama public colleges and universities from going into effect. She also enjoined the enforcement of provision targeting day laborers’ rights to look for work and be picked up for a job, as well as a provision that would have criminalized undocumented immigrants’ attempts to look for and get a job. Blackburn also blocked a portion of the law that would have made it illegal to give a ride to or harbor a person who’s undocumented.
However, she was unconvinced by arguments from the Department of Justice, faith groups and a civil rights coalition that other severe parts of the law ought to be blocked as well. Blackburn refused to enjoin provisions that equip law enforcement agents with the power to question and detain anyone who they have "reasonable suspicion" to believe may be undocumented. Immigrant and civil rights groups have argued that this provision all but legalizes racial profiling, because it’s impossible to determine a person’s immigration status on sight alone, and any inference would rely on profiling.
"This is precisely contrary to the decision that courts that have looked at similar provision in Arizona and Georgia enjoined," Linton Joaquin, general counsel for the National Immigration Law Center told Colorlines. NILC is one of the plaintiffs in a coalition of civil rights groups’ legal challenge to the law. "It’s a classic example of an area for states not to be legislating in."
Blackburn also let stand a provision that demands that K-12 schools track the immigration statuses of their students, and let stand a provision that makes any business contract that an undocumented immigrant enters into unenforceable. Even though the Supreme Court has upheld elementary and secondary education as a constitutional right, undocumented immigrant parents who fear being tracked by the government will likely be too fearful to send their kids to school, said Kevin Johnson, a professor of immigration law at the University of California, Davis.
HB 56 and these provisions in particular are an attempt to frighten immigrant communities and undercut their basic constitutional rights, Johnson said.
"Taking away contract rights is just another effort to strip the few, if any, rights that undocumented immigrants have from them."
The legal strategy to fight Alabama’s HB 56 is very different from the moral arguments against the law, though.
The Department of Justice and other groups argued that Alabama violated the Constitution’s Supremacy Clause, which says that federal law takes precedence over state law, and that Alabama "pre-empted" federal immigration laws by attempting to create its own statutes and enforce them on its own. Traditionally, only the federal government has had the right to write and enforce immigration law, and Alabama had no right to step into this territory, the DOJ argued.
Prior judges considering state immigration laws had been sufficiently moved by this argument–how could Judge Blackburn have allowed to let stand provisions that no other federal judge has so far allowed to go into effect? Her 115-page decision provides clues.
Where others were moved by the arguments that state immigration laws interfered with the federal government’s own strategy and scheme for enforcing immigration laws, Blackburn instead took the tack of looking into Congress’s record to understand what federal law had and hadn’t dealt with. If Congress had not explicitly laid out its intent for how it intended to handle specific matters–like whether or not undocumented immigrants’ contracts ought to be enforceable–Blackburn ruled that states had the right to enact their own laws on the matter, essentially approaching the matter from a states’ rights perspective. The provisions that Blackburn enjoined were provisions that she felt Congress had dealt with and had specific opinions about.
"What she appears to have said is that she’s not persuaded that what the state is doing is actually going to interfere with the way that the federal government regulates immigration," said Aarti Kohli, director of immigration policy at UC Berkeley’s Warren Institute. "She’s also not persuaded that Congress has said in these various provisions that they don’t want the states to be part of this scheme."
Blackburn’s decision is a defeat for immigrants in the ongoing legal battle over whether states have a right to enact and enforce their own immigration laws. Alabama is the fifth state to enact laws inspired by Arizona’s SB 1070, but the first to have these key provisions upheld. In the past year federal judges have blocked Utah, Indiana and Georgia from enforcing their own anti-immigrant laws while the courts resolve the question of the constitutionality of these laws. The Ninth Circuit Court of Appeals upheld a lower court’s similar injunction of Arizona’s pioneering attempt to enact state immigration laws.
"Not only will we appeal the court’s decision, we will also mobilize and organize Alabamians to repeal this law and stand up for immigrant justice," Isabel Rubio, executive director of the Hispanic Interest Coalition of Alabama, said in a statement. HICA is also a plaintiff in the case.
"It’s plainly wrong on some of the fundamental issues that the court addressed and that’s not compensated for by the fact that the court did recognize and enjoin other parts of the law as unlawful," said Joaquin of NILC.
"I’m confident that ultimately we’ll prevail and that states do not have the authority to create their own immigration regimes, which is really what the Alabama statute does," Joaquin said.
Johnson, the UC Davis law professor, said that this ruling sets up the next stage of the legal fight that will likely end up in the Supreme Court. "Part of what this tells me is there is some conflict between this case and the DOJ’s case versus Arizona," Johnson said. "It makes it all the more likely this is going to end up in the Supreme Court’s hands."