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Federal lawsuit against Alabama immigration law avoids civil rights challenges

MahurinImmigration_Thumb_2274.jpg
MahurinImmigration_Thumb_2274.jpg

On Monday, the federal government filed a lawsuit seeking to block H.B. 56, Alabama’s new immigration enforcement law. In doing so, the Obama administration is responding to repeated requests from immigrant and civil rights activists to lend their weight to a nationwide effort to push back against state-level “attrition through enforcement” laws.

In a statement, U.S. Attorney General Eric Holder said, “Today’s action makes clear that setting immigration policy and enforcing immigration laws is a national responsibility that cannot be addressed through a patchwork of state immigration laws.”

The Obama administration has made clear its opinion, via its ongoing case against Arizona for the state’s immigration law, that when states try to use local- and state-law enforcement to police immigration, they are interfering with exclusive regulatory rights of the federal government. However, many immigrant-rights activists have also argued that the Obama administration isn’t going far enough in its own efforts to protect immigrants’ rights, and are, in fact, conducting their own “attrition through enforcement” policies.

Examples include the increase in so-called “silent raids” (workplace audits that target industries likely to employ undocumented workers), the unprecedented number of deportations for non-criminal violations and the use of the Secure Communities biometric identification program that allows the federal government to check the legal status of people arrested by local police. These policies are part of an effort by the Obama administration to police existing federal immigration laws in a more stringent manner than they have been in the past.

Critics allege that the federal lawsuit against Arizona is motivated purely by jurisdictional concerns, and not a greater preoccupation with preventing civil rights violations by state governments. As Adam Serwer, a staff writer and blogger at the American Prospect, wrote in June:

Secure Communities doesn’t possess all the other aspects of draconian immigration laws … but it certainly offers an example of cognitive dissonance on the part of administration officials who have expressed concern over the possibility that SB 1070 would lead to “racial profiling.” The simple answer is that the administration is less concerned about racial profiling than it is about federal preemption and the possibility of states forming their own immigration laws.

The argument that state immigration laws like Arizona’s preempt federal law is the basis of Arizona v. United States, as well as the Justice Department’s new lawsuit against Alabama. An excerpt from the 45-page complaint against Alabama lays out the federal government’s case against the state law:

In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests… Although a state may exercise its police power in a manner that has an incidental or indirect effect on aliens, it may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.

Preemption isn’t the only basis for the lawsuit. The complaint against Alabama also alleges that H.B. 56 violates the Commerce Clause, by attempting to restrict housing and transportation of undocumented immigrants, which affects interstate commerce, as well as by attempting to annul existing contracts held by undocumented immigrants. The federal complaint also objects to the schooling provisions of H.B. 56, saying they have a chilling effect on an “alien’s ability … to go to school.”

The Justice Department is the third lawsuit challenging the Alabama law. The first — brought by the ACLU, the Southern Poverty Law Center and the National Immigration Law Center — challenges H.B. 56 on the grounds that it preempts the federal government’s exclusive power to enforce immigration law, but also goes further and asserts that the law would violate civil rights through unreasonable search and seizures, lack of due process and curbed access to the courts. Like the Justice Department, this suit also alleges that the law will have a chilling effect on many children’s access to a public education. A separate lawsuit, brought by Alabama residents, challenges the law under Alabama’s own constitution.

In Alabama, as in the case of Arizona v. United States, there are significant differences between the respective lawsuits filed by the Justice Department and civil rights groups.

“We make a claim that the law should be preempted in its entirety,” says Karen Tumlin, the managing attorney at the National Immigration Law Center. “That’s not a claim the Justice Department makes.”

Tumlin argues that the substantive differences between the two complaints have a lot to do with who the plaintiff is in each case. For example, while the Justice Department includes the challenge to the K-12 schooling provisions of the Alabama law (which require records be kept on undocumented children enrolled in Alabama schools), it does not challenge the law’s ban on undocumented students enrolled in public universities. The civil rights groups’ complaint (PDF) does, but Tumlin argues that it can do so more easily because some of the plaintiffs in their lawsuit are college students, teenagers planning on going to college or adults who are enrolled or plan to enroll in ESL classes at community colleges.

Sam Brooke, a staff attorney with the Southern Poverty Law Center, says that the reason for the difference between the two lawsuits is that while the federal government naturally has the strongest claim when it comes to preemption, civil rights groups and individuals are best positioned to sue over civil rights violations.

“An individual can best raise those claims,” Brooke says. “I’m not saying the federal government couldn’t, but it’s easier for us to make that argument.”

Brooke frames the two lawsuits as complementary and not at odds with each other. “We’re very happy that the federal government has joined us in this fight,” he says.

Tumlin agrees, saying, “The heart of the DOJ lawsuit is the same as our lawsuit.”

Brooke says that despite his group’s concerns over the Obama administration’s record on immigration, the federal government regulating immigration is still preferable to the states doing it: “It’s a delicate balance. It’s not as though we are satisfied with the enforcement priorities of Homeland Security, and it’s not as though we view their enforcement efforts as always appropriate, so there is this tension.”

But at the same time, Brooke says, at least the federal government has the training and legal authorization to properly deal with immigration cases, and use discretion to determine whether it’s the best idea to deport someone. “At the state level,” he says, “that’s simply not true.”

As for whether the federal government will challenge other state-level immigration laws, which as the Atlanta-Journal Constitution reports activists in Georgia are currently calling for, the NILC’s Tumlin says “the only looming date is September 1,” when the Alabama law is set to go into effect. All other state laws, except for South Carolina’s (which goes into effect January 1, 2012) have already been temporarily blocked by federal courts, which means that opponents of state-level immigration enforcement, including the Justice Department, see stopping Alabama’s law from going into effect as their top priority.

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