Feds & States Face Off Over Immigration Legislation
by Jennifer Ginn
When a federal judge issued an injunction against some of the more controversial parts of Arizona’s stringent immigration law in July 2010, Gov. Jan Brewer, a 1995 Toll Fellow, declared, “The fight is far from over.”
Brewer’s words may very well be prescient in the battle over immigration laws in primarily Southern and Western states as the federal government breaks from its usual reluctance to intervene in state legislative efforts.
“It’s pretty unusual,” said Peter Spiro, a professor of immigration and constitutional law at Temple University in Pennsylvania. “This immediate level of activity related to immigration is unprecedented. … It’s a matter of immigration having grown so dramatically in recent years, along with the inability of the federal government to address the perceived problems associated with it.”
More than 1,500 bills and resolutions regarding immigration were introduced in the first quarter of 2011, according to the National Conference of State Legislatures. While few of those bills actually passed, several states—including Alabama, Georgia, South Carolina and Utah—adopted far-reaching immigration legislation.
Those new state laws include pieces from Arizona’s Senate Bill 1070, passed in 2010, and are commonly referred to as “Arizona-like” immigration policies. Like the Arizona law, legislation passed in 2011 include such measures as requiring officers to check a person’s immigration status while enforcing other laws and making it a state crime for immigrants to not be carrying their registration documents.
As in Arizona, the U.S. Department of Justice is challenging all of these measures.
Muzaffar Chishti, director of the nonpartisan Migration Policy Institute at the New York School of Law, said he thinks the DOJ is challenging these state laws, in part, to maintain the federal government’s prerogative in immigration and foreign relations.
“But it is also clearly politics,” Chishti added. “A lot of these measures have obviously geared up massive opposition in the Latino community. The federal government wants to be seen as supporting those concerns. That’s not without any political meaning given the relative importance of the growing Hispanic vote.”
State policymakers, meanwhile, are reluctant to cede much ground despite looming federal challenges.
“It’s hard to tell what a court will do,” said Alabama Sen. Scott Beason, one of the sponsors of that state’s immigration legislation, House Bill 56. “We’ve got a very complete package on the table, … Would I think they’d agree 100 percent? I’d hope so, and I think we’ve done a great job. Will they agree 100 percent, probably not.
“Pushing what we’re pushing for is going to give states more leeway to deal with these issues the federal government refuses to deal with. If we sat back and did nothing, the line wouldn’t have moved at all. I don’t feel the Supreme Court will say we can’t do anything.”
Arizona—The Proving Ground
Chishti said Arizona’s law is an important landmark in the state versus federal debate over immigration law. The DOJ waited until the last day to file a lawsuit against Senate Bill 1070. The reaction times are now coming quicker, however. A federal judge in late June enjoined parts of Georgia’s immigration law—House Bill 87— before the law could take effect.
A federal judge in September upheld most parts of Alabama’s House Bill 56, signed by the governor in June, but did enjoin a couple of provisions because they pre-empted federal law. In early
November, the DOJ asked Alabama school superintendents to provide information about enrollment practices to see if one of the bill’s provisions—requiring school districts to ask about the immigration status of new students and their parents—discourages students from attending school.
“The federal government was kind of watching this as a spectator until, I think, Arizona,” Chishti said.
Arizona also has been the state where the first Supreme Court ruling regarding how far a state can go to control illegal immigration was handed down. In May, the Supreme Court ruled a 2007 state law imposing sanctions on businesses that hire illegal immigrants was constitutional.
The U.S. Supreme Court will hear a case involving Senate Bill 1070—whether officers can check a person’s immigration status while enforcing other laws—this spring. Spiro doesn’t expect one clear winner in the case.
“My opinion is they’ll split the difference,” he said. “They will show some sympathy to what is motivating the states in these cases. … The provisions related to determining whether someone is an illegal alien or not, those provisions will be upheld. The provisions that make illegal immigration a crime under state law, I think they’ll be shot down. … It’s not going to be a clear shut-out for either side.”
Political Wrangling Continues
The debate over immigration laws is now spilling over into Congress. U.S. Sen. Jeff Sessions of Alabama has said he intends to co-sponsor a bill that would keep the DOJ from taking part in lawsuits over state immigration legislation.
“The Department of Justice—the chief law enforcement agency in this country—has failed in its responsibility to enforce federal immigration laws,” Sessions said in a press release. “The Justice Department needs to stop going after states that are taking steps in harmony with federal laws to see that our immigration laws actually are enforced and to help end the lawlessness.”
Chishti believes Congress should be redefining the roles of federal and state governments in immigration reform rather than discussing this type of legislation.
“There’s obviously a strong campaign to minimize the ability of the federal government to intervene,” Chishti said. “… Sen. Sessions, frankly, I don’t think is going to get anywhere.”
Chishti said there probably is a limit to how many states will try to pass restrictive immigration laws. With Supreme Court challenges looming in several states, policymakers may decide that such laws are simply too expensive—both financially and politically.
“There is a cost attached to defending all these lawsuits,” Chishti said. “That’s a real cost at a time when state budgets are restrained. I think some legislatures are really concerned about that.”
Beason of Alabama is one of those concerned.
“Alabama was recently told … if there were violations of civil rights, we’d be at risk of losing federal funding,” Beason said. “I don’t know how the Department of Justice does that, but just to say that is very disturbing.”
