FAIR Legislative Update November 28, 2011
President Obama’s Justice Department (DOJ) filed suit November 22 to enjoin provisions of Utah’s “Illegal Immigration Enforcement Act” (H.B. 497), passed by the state legislature in March of this year. The DOJ lawsuit makes Utah the fourth state to be sued by the federal government over its immigration enforcement law in just over a year. Claiming that federal law preempts the legislation, the DOJ specifically seeks to block three core provisions of Utah’s HB 497 — Sections 3, 10, and 11.
Section 3, the first provision the federal government seeks to enjoin, would require any law enforcement officer conducting a lawful stop, detention, or arrest, to check the immigration status of any person they arrest for a felony or Class A misdemeanor if that person is unable to provide valid identification. The provision also allows police to ask those stopped for less serious misdemeanors about their immigration status and requires them to do so only if the person is arrested and booked. The DOJ argues that federal law preempts this provision because it constitutes “non-cooperative” unilateral enforcement efforts by Utah police, and thus precludes DHS “direction and guidance” on how to handle a particular case. (DOJ Compl. ¶ 53) As such, the DOJ claims that this provision prevents DHS from directing officers “not to systematically engage in immigration enforcement … or to refrain from particular enforcement actions…” (Id. at ¶ 56) In addition, the DOJ argues that section three will lead to an increased number of immigration status inquiries, thus burdening DHS and diverting resources away from the Department’s stated priorities. (Id. at ¶ 57)
Section 10, the second provision the federal government seeks to enjoin, makes it a crime for an individual to harbor, encourage the entry of, or transport an illegal alien into or within the state, for financial gain. The DOJ argues that federal law preempts this section because these activities are encompassed by the federal government’s scheme for regulating immigration, which a state may not supplement. (Id. ¶ 68) The DOJ further argues that federal law only permits states to arrest individuals for smuggling, and section 10 allows Utah to not just arrest individuals for such behavior, but prosecute them as well. (Id.) Finally, the DOJ argues federal law preempts section 10 because it restricts interstate commerce by seeking to deter and prevent the movement of illegal aliens into Utah. (Id. at ¶ 69)
Section 11, the final provision the federal government seeks to enjoin, allows law enforcement officers to arrest without a warrant aliens who have a deportation order or who have been charged or convicted in another state with one or more aggravated felonies. (See 8 U.S.C. § 1101(a)(43)) The DOJ argues federal law preempts section 11 because it undermines federal apprehension and detention decisions. The DOJ complains that just because an alien has a deportation order does not mean that DHS intends to arrest and/or detain them. Accordingly, the DOJ reasons section 11 allows Utah police to contradict the federal government’s decision to decline to enforce the law and is thus preempted. (DOJ Compl. ¶ 63) Moreover, the DOJ argues that section 11 authorizes the harassment and interrogation of lawfully present aliens, risking “international controversies” and thus is preempted by the federal government’s authority over foreign policy.
Upon filing the lawsuit against Utah, U.S. Attorney General Eric Holder derided the emergence of state immigration enforcement laws. “A patchwork of immigration laws is not the answer and will only create further problems in our immigration system,” said Holder. (DOJ Press Release, Nov. 22, 2011) “The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy,” he continued. (Id.) DHS Secretary, Janet Napolitano, also commented on the lawsuit. “This kind of legislation diverts critical law enforcement resources from the most serious threats to public safety and undermines the vital trust between local jurisdictions and the communities they serve,” she said. (Id.)
While the DOJ freely criticized the State’s enforcement measures, the DOJ also stated it would not be challenging two Utah guest worker bills signed into law last spring, H.B. 116 and H.B. 469, despite acknowledging in its release that federal law “clearly” preempts these measures. “Given that the provisions do not take effect until 2013, and in light of the constructive conversations the department continues to have with Utah officials about these provisions pursuant to the Justice Department’s long-standing policy of exploring resolution short of litigation before filing suit against a state, the department is not challenging these provisions today,” the press release read. (Id.) (To learn more about the guest worker laws, read FAIR’s Legislative Update, April 11, 2011)
Utah Attorney General, Mark Shurtleff, who had previously bragged that he had convinced the Obama Administration not to target Utah’s package of immigration laws, announced his disappointment in the DOJ’s suit. (See FAIR’s Legislative Update, Apr. 11, 2011) “I’d hoped beyond hope that [the Justice Department] would stay out and send a message to states passing really extreme, enforcement-only laws,” he said. (Politico, Nov. 22, 2011) Utah Governor Gary Herbert also commented on the suit, “States are involved because of frustration. I wish that the federal government would spend as much time in enforcing the laws they put in place…as they put into suing the states for trying to do their [the federal government’s] job, which they are obviously not doing.” (FOX 13 News, Nov. 23, 2011)
Some have already questioned whether the DOJ lawsuit is nothing more than appeal to the amnesty lobby. In May, U.S. District Judge Clark Waddoups issued a temporary restraining order at the request of the open borders groups, including the Utah Coalition of La Raza, Service Employees International Union (SEIU), and the Latin American Chamber of Commerce. That restraining order prevented all provisions of the bill from taking effect as scheduled, including the provisions the DOJ seeks to strike down with its complaint filed last week. (CNN, May 11, 2011) The next hearing on the La Raza lawsuit will take place Dec. 2, 2011. (Washington Post,Nov. 22, 2011)
Last week, thirty-nine House Democrats signed onto an amicus (“friend of the court”) brief in support of lawsuits filed by the Department of Justice and Hispanic Interest Coalition of Alabama against H.B. 56, Alabama’s tough immigration enforcement law. (See amicus brief, Nov. 21, 2011; see also FAIR Legislative Update, Aug. 8, 2011) Like the lawsuit brought by the Department of Justice, the brief argues that the Alabama law is unconstitutional because it is preempted by federal law.
Rep. Luis Gutierrez (D-Ill), one of the most vocal amnesty advocates in the U.S. House, is leading the charge on the lawmakers’ amicus brief. “HB 56 has and will cause irreparable harm to communities and families throughout Alabama, but will also cause irreparable damage to Constitutional principles if allowed to stand,” he stated in a press release. (Rep. Gutierrez Press Release, Nov. 22, 2011) “We join the U.S. Department of Justice, civil rights organizations, immigrant advocates, educators and people of faith in calling for HB 56 to be stripped from Alabama’s law books.” (Id.)
The amicus brief comes on the heels of a series of demonstrations held by open borders lobby protestors and Democratic lawmakers from all over the country in opposition to the Alabama law. (See FAIR Legislative Update, Nov. 21, 2011) In fact, the day the brief was filed, Democrats held an ad hoc hearing in Birmingham, AL to hear testimony regarding how the law is purportedly harming the State. (Huffington Post, Nov. 21, 2011)
In spite of such testimony, data from the Alabama Department of Labor suggest that H.B. 56 is in fact boosting employment in the State by requiring employers to verify the employment eligibility of new hires. Unemployment in Alabama has dropped from 9.8 percent in September to 9.3 percent in October, well above the 0.1% decline nationwide over the same period. (AL Dept. of Labor, Oct. 2011 Employment Rates) In some counties the decrease in unemployment was as high as a full percentage point. (Daily Caller, Nov. 21, 2011)
Although the courts have largely upheld most of the provisions in H.B. 56, the 11th Circuit Court of Appeals recently enjoined two provisions of the law. (See FAIR Legislative Update, Oct. 17, 2011) These sections include:
- Section 10, which provides that an illegal alien who fails to comply with the federal alien registration requirements found in 8 U.S.C. § 1304(e) and/or 8 U.S.C. § 1306(a) is guilty of a misdemeanor under state law; and
- Section 28, which requires public schools to gather immigration status information from students upon enrollment, based on birth certificates, and compile and submit non-identifiable data related thereto to the state.
The injunction of these two provisions was in addition to those already enjoined by a U.S. District Judge in late September. These additional sections include 11(a) (solicitation of work by an illegal alien), 13(a) (concealing, harboring or transporting of illegal aliens), 16 (deduction of business wages), and 17 (private cause of action for employment discrimination). (See FAIR Legislative Update, Oct. 3, 2011)