FAIR Legislative Update October 3, 2011
Last Wednesday, Federal District Court Judge Sharon Blackburn upheld most provisions of Alabama’s historic immigration law, H.B. 56, “passed by the Alabama legislature earlier this year.” The U.S. Department of Justice sued Alabama in August to prevent the state from enforcing the new law, which was scheduled to go into effect in early September. At that time, Judge Blackburn issued a one-month injunction against the law in order to give her more time to study the parties’ arguments and the applicable law. Judge Blackburn’s ruling last week came the day that temporary injunction was set to expire.
In her decision, Judge Blackburn upheld the core provisions of H.B.56. This includes Section 10, which provides that failure to carry alien registration documents as already required by federal law is a misdemeanor under state law. (See 8 U.S.C. § 1304(e)) The DOJ argued that section 10 would interfere with this federal registration scheme. The court, however, discerned that the state law’s registration requirements under H.B. 56 “arise in a narrower set of circumstances than the federal crimes for violating either 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a).” (U.S. v. State of Alabama, Slip Op. at 19) Blackburn pointed out that Congress has already made it a crime for an alien to not carry registration documents. (Id. at 24)
Another key provision upheld by Judge Blackburn is Section 12(a), which provides that law enforcement in the state shall make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person where reasonable suspicion exists that the person is an alien who is unlawfully present in the U.S. The DOJ argued that while states are allowed to assist the federal government in enforcement of federal immigration law – as in 287(g) agreements—H.B. 56 goes beyond assisting federal agents to enforcing federal law and therefore it is preempted. However, Judge Blackburn rejected this argument and instead adopted the reasoning of Judge Bea’s dissenting opinion in the decision of U.S. v. Arizona, 641 F.3d 339, 371-82. Blackburn noted that in any preemption analysis it is Congress’s intent that must be applied, not the intent of the Executive Branch. Referencing multiple sections of the Immigration and Nationality Act, including 8 U.S.C. § 1357 and 8 U.S.C. § 1373(c), Blackburn said Congress has clearly stated its intention to have state and local officers assist in the enforcement of federal immigration law and in the identification of illegal aliens. Thus, she held that Section 12(a), which directs state law enforcement officers to inquire about status, is not preempted by federal law.
Another important provision Judge Blackburn upheld was Section 18, which requires that law enforcement officers attempt to verify the immigration status of individuals who are arrested for driving without a license when the officer is unable to determine by any other means that the individual has a valid driver’s license. Alabama law already provides that drivers must carry their licenses at all times. (Ala. Code § 32-6-9(c)) The DOJ argued that Section 18 is an attempt by Alabama to enforce federal immigration laws in a manner that is non-cooperative. The DOJ asserted that state and local officers are to cooperate with the Secretary of Homeland Security if they assist federal officers, and under this Section the DOJ did not feel there would be a cooperative effort. The court adopted the same analysis it used for Section 12 (above) and similarly concluded that the requirements of section 18 do not create an obstacle to the fulfillment of Congressional intent.
Judge Blackburn also upheld Section 28, which requires public elementary and secondary schools to collect and compile data on the immigration status of their students and report this data annually to the State Board of Education and the State Legislature. Public schools shall obtain this information by checking the birth certificates of students who enroll. DOJ argued that this provision was an impermissible registration scheme for children, but Judge Blackburn rejected this argument, holding that that Section 28 does not create an independent, state-specific registration scheme or even attempt to ‘register’ anyone. Thus, she also upheld this part of the new Alabama law.
Finally, Judge Blackburn upheld Section 30, which prohibits an illegal alien from entering into a “business transaction” with the state or a local government. The DOJ argued that Congress preempted the power of the states to refuse licenses to illegal aliens, but Judge Blackburn found that DOJ did not provide sufficient support for this argument. She determined that this section intended to prevent the state from issuing a license to an illegal alien, including drivers, business, professional, hospital, day care facilities, and an imaginable multitude of other different licenses. (U.S. v. State of Alabama, Slip Op. at 114) Therefore, to the extent it reaches commercial contracts and licenses within the state’s licensing authority, this provision is permissible. (Id.)
Judge Blackburn did enjoin several provisions of Alabama’s H.B. 56, ruling that these sections are likely preempted by federal law. One provision Blackburn enjoined was Section 11(a), which makes it a Class C misdemeanor under state law for a person who is an unauthorized alien to knowingly apply for work, solicit work, or perform work, either as an employee or an independent contractor. The DOJ argued that this section was preempted as Congress had clearly determined that criminal sanctions should not attach to the solicitation of work by illegal aliens. Here the court agreed with DOJ and held that section 11(a) was impliedly preempted by federal law. Blackburn pointed to Section 274A of the 1986 Immigration Reform and Control Act (IRCA), Pub. L. No. 99-603, which she said creates an entire scheme of penalties for employers who hire illegal aliens, but does not address the conduct of illegal aliens seeking employment. The court interpreted this scheme as reflecting a “clear choice on the part of Congress to deter the employment of unauthorized aliens through a detailed scheme of civil and criminal sanctions against employers, not employees.” (U.S. v. State of Alabama, Slip Op. at 39) Blackburn also pointed to the legislative history of the law, which she said “reflects a deliberate decision on the part of Congress not to criminalize work by unauthorized alien[s].” (Id. at 40-1)
Judge Blackburn also temporarily enjoined Section 13(a), which prohibits the concealing, harboring or transporting of illegal aliens. The DOJ argued that this portion of the bill was impliedly preempted because it conflicts with Congressional objectives and that it also violates the Commerce Clause of the U.S. Constitution by its effect on interstate travel. (U.S. Const., art. I, sec. 8, cl. 3) Here, the court did find that section 13 did interfere with the objectives of Congress because, as drafted, it criminalized conduct authorized by federal law –such as allowing clergy exceptions to transporting illegal aliens—and allows Alabama courts to interpret an Alabama-specific transportation and harboring scheme. (U.S. v. State of Alabama, Slip Op. at 83) Although the court noted that the U.S. would not likely succeed on the merits of its Commerce Clause argument, the court did enjoin the section based on the potential success of the government’s preemption argument.
Judge Blackburn also temporarily enjoined Section 16, which prohibits employers from deducting as a business expense wages paid to illegal aliens. The court determined that this section constituted a sanction, not a licensing law, and thus is expressly preempted by 8 U.S.C. § 1324a(h)(2), which only allows states to use licensing laws to sanction employers of illegal aliens. (Id. at 87)
Another provision enjoined by Judge Blackburn was Section 17, which creates a civil right of action of discrimination for U.S. citizens and legal aliens against employers who hired illegal aliens. Similar to her analysis of Section 16, Judge Blackburn found that section 17 constitutes a sanction, not a licensing provision, because it makes an employer liable to an unsuccessful applicant, terminated citizen or authorized alien based solely on the employment of an illegal alien. Thus, Blackburn held that the Section 17 is preempted under 8 U.S.C. § 1324a(h)(2).
Upon learning of the ruling, Governor Robert Bentley declared that Alabama now has the “strongest immigration law in the country.” (The New York Times, Sept. 28, 2011) The American Civil Liberties Union (ACLU) denounced the ruling, primarily expressing vehemence against the long-standing federal, and now state, requirement that illegal aliens to carry alien registration identification. (ACLU, Sept. 28, 2011) The Department of Justice, as well as open borders organizations such as the ACLU, is expected to appeal the decision.
At a meeting Monday evening, the Rhode Island Board of Governors for Higher Education unanimously voted to make illegal aliens eligible for in-state tuition at the State’s public colleges and universities. (Reuters, Sept. 27, 2011) According to a Rhode Island higher-education spokesman, the laws authorizing the Board of Governors to run the public-college system gives the panel the authority to determine the criteria for in-state tuition eligibility. (Providence Journal, Sept. 27, 2011)
Under Rhode Island’s new policy, illegal aliens will qualify for the tuition break at state colleges and universities if they: (1) attended high school in Rhode Island for at least three years; (2) received a high school diploma or GED in Rhode Island; and (3) signed an affidavit stating an intent to seek legal status once eligible to do so.(Reuters, Sept. 27, 2011) The Board approved this policy notwithstanding a federal law that generally bars from granting tuition breaks to illegal aliens. The statute reads: “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit….” (See 8 U.S.C. §1623)
Rhode Island Governor Lincoln Chafee praised the move, claiming that providing in-state tuition to illegal aliens would “improve the intellectual and cultural life of [Rhode Island] while strengthening our work force and helping our economy.” (Providence Journal, Sept. 27, 2011) One of Gov. Chafee’s first acts upon taking office was to rescind his predecessor’s executive order requiring all public employers to verify the employment eligibility of new hires. (See FAIR Legislative Update, Jan. 10, 2011) Recent news reports also indicate the governor is considering offering driver’s licenses to illegal aliens, a move that would turn Rhode Island into one of the most inviting states for illegal aliens. (NBC 10, Sept. 28, 2011)
Rhode Island now joins 12 other states in permitting illegal aliens to qualify for in-state tuition. These states include: Texas, California, New York, Utah, Washington, Oklahoma, Illinois, Kansas, New Mexico, Nebraska, Maryland, and Connecticut.
President Obama entertained questions from what was called a “U.S. Hispanic audience” Wednesday during an online roundtable moderated by Jose Siade of Yahoo Espanol, Karine Medina of MSN Latino, Gabriel Lerner of AOL Latino and Huff-Post Latino Voices. (CNN, Sept. 28, 2011) The questions covered a broad spectrum of issues from the DREAM Act and comprehensive immigration reform, to whether Obama felt it is time for a Hispanic to lead the executive branch. (White House Blog, Sept. 28, 2011)
The questions appeared to reflect a sense of disillusionment among U.S. Hispanics over the President’s immigration policies. For example, one of the first questions asked of Obama was why has his Administration deported more illegal aliens than those before him. In an attempt to deflect this criticism, he argued the deportation statistics are misleading and acknowledged that he has virtually stopped interior enforcement of our immigration laws. He said, “[T]he statistics are actually a little deceptive because what we’ve been doing is…apprehending folks at the borders and sending them back. That is counted as a deportation, even though they may have only been held for a day or 48 hours.”
President Obama also blamed Congress for the failure enact comprehensive immigration reform, stating there is not enough support for an amnesty bill among lawmakers. “The most important thing for your viewers and listeners and readers to understand,” he said “is that in order to change our laws, we’ve got to get it through the House of Representatives, which is currently controlled by Republicans, and we’ve got to get 60 votes in the Senate. And right now we have not gotten that kind of support….”
In addition, the President used the roundtable as an opportunity to advocate increasing the number visas for entrepreneurs and foreign students who attend college in the United States, regardless of high unemployment. “[F]or us to train them here in the United States and then send them back to start businesses elsewhere makes absolutely no sense.” His comments come just days after his administration launched an initiative, called Study in the States, to encourage foreign students to study and remain in the U.S.—a move that would only increase competition for U.S. graduates who are already struggling to find jobs. (DHS Press Release, Sept. 16, 2011)