Scott Kuhagen

The Justice Department on Friday appealed the decision of a federal district court judge in Alabama, Sharon Lovelace Blackburn, who enjoined several sections of Alabama’s new state immigration law after the Justice Department had sued the State of Alabama, challenging Alabama’s law much like it did with Arizona’s. One of the bloggers at The Economist’s Democracy in America blog suggests that “the battlefield will soon shift from the courts back to the ballot boxes” regarding laws like these. That’s possible, but I think there is still a fair amount of litigation that will continue to dominate the headlines. As for the impact of the law itself, it’s already having an effect on families in Alabama, as the Washington Post highlighted in a recent story. What did Judge Blackburn’s decision actually say? See below for more.

When I discussed aspects of the Third Circuit’s Lozano decision, I discussed the various kinds of preemption that the Court used to examine the Hazleton ordinances; Judge Blackburn used the same types to examine the Alabama statute, but I’m focusing more on simply pointing out which sections were subject to a preliminary injunction, and which were not.

Judge Blackburn found the required “substantial likelihood” that the administration would succeed on the merits in its challenge of four parts of the Alabama law, known as H.B. 56, leading to their being enjoined:

1. Section 11(a), which made it illegal for a person without a valid immigration status to either work as an employee or independent contractor, or to seek or solicit such work. In discussing the potential preemption of this section by federal law, the Court found that “[t]he text of [the Immigration Reform and Control Act of 1986] reflects 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.” Pg. 41. The Court further found that “[b]ased on IRCA’s text and legislative history, this court concludes that the clear and manifest purpose of Congress was to supercede Alabama’s authority to enact H.B. 56 § 11(a) sanctioning work by unauthorized aliens.” Pp. 44-45. In discussing whether the required irreparable injury was present, the Court wrote that “[t]o allow Section 11(a) to take effect would be to allow a law of Alabama to be “supreme” over federal law; this is an irreparable constitutional injury. A preliminary injunction is an extraordinary remedy, but because the court finds Section 11(a) is preempted, preliminary injunctive relief is warranted.” Pg. 51.
2. Section 13, which made it illegal to “harbor,” “transport,” or rent an apartment to someone that is known to be without a valid immigration status. Religious leaders were especially concerned about this provision because they said it would hamper their ministries to immigrant populations. On the legal question, the Court concluded: “In sum, H.B. 56 § 13 is preempted because it prohibits conduct specifically authorized under the federal harboring and transportation scheme, creates “additional” regulations for conduct not prohibited by the federal harboring and transportation scheme, “inconsistently with the purpose of Congress,” Hines, 312 U.S. at 66, and allows the Alabama courts to interpret an Alabama-specific transportation and harboring scheme “unconstrained by the line of federal precedent” interpreting the federal harboring and transportation scheme.”" Pp. 83-84.
3. Section 16, which prohibited deduction as business expenses any wages paid to employees without a valid immigration status. The Court found this provision was not one of the licensing laws that states are normally allowed to make with regard to immigration, and was therefore pre-empted.
4. Section 17, which created a cause of action for a U.S. citizen or a person with a valid immigration status, when an employer either refused to hire or terminated the citizen or person when the employer knew, or should have known, that they were currently employing someone without a valid immigration status. The Court found that this was an impermissible sanction preempted by the INA.

However, Judge Blackburn did not enjoin the enforcement, at this stage of the following sections:

1. Section 10, which makes it a crime to be present without status while violating registration requirements that immigrants are supposed to adhere to.
2. Section 12(a), which is similar to Arizona’s provision stating that when there is a “reasonable suspicion” that someone may be in the U.S. without a valid immigration status, the police can inquire about the person’s immigration status. The Court relied on the reasoning of Judge Bea in dissent in the 9th Circuit opinion that dealt with Arizona’s similar law, where Judge Bea wrote that “As I see it, Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens, see 8 U.S.C. § 1373(c), and in the “identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U.S.C. § 1357(g)(10)(B).” Pg. 63.
3. Section 18, which would allow a law enforcement inquiry into someone’s immigration status if the person did not have a driver’s license during a traffic stop.
4. Section 27, which “strips an unlawfully-present alien of the capacity to contract except in certain circumstances – i.e. the other party to the agreement did not know the alien was unlawfully present and the contract could be performed in less than 24 hours.” Pg. 101.
5. Section 28, another controversial section, which requires public schools to identify the citizenship status of their students by having students provide their birth certificates to the school, and to report this information to the Alabama State Board of Education. If a student is determined to have been born outside of the U.S., the parent would have to inform the school of the student’s immigration status within 30 days; failure to do so leads to a presumption that the student is without a valid immigration status. The Court concluded: “Section 28 does not create an independent, state-specific registration scheme, attempt to register anyone, or create registration requirements in addition to those established by Congress in the INA. The standard for registration provided by Congress remains uniform. Section 28 is not preempted by federal law.” Pp. 108-09.
6. Section 30, which “prohibits unlawfully-present aliens from contracting with state and local governments, applying for or renewing drivers’ licenses and identification cards, and applying for and renewing motor vehicle license plates.” Pg. 114. The Court found that because this dealt with commercial contracts and licenses, not any federal issues, that the federal government didn’t have a likelihood of success on the merits.