Parts of Alabama immigration law likely to stand up in court

Published: Sunday, July 24, 2011, 9:00 AM

Eric Velasco -- The Birmingham News By Eric Velasco -- The Birmingham News

Federal judges have temporarily blocked most criminal provisions in states that recently passed laws like Alabama's targeting illegal immigrants, but have allowed state regulations on employing undocumented workers, an analysis of the litigation shows.

The coalition of advocacy and legal groups, unions and individuals that filed suit this month against Alabama's comprehensive immigration law will seek a temporary injunction from U.S. District Judge Sharon Blackburn on Aug. 24.

Six states -- Arizona, Utah, Georgia, Indiana, Alabama and South Carolina -- passed or amended laws since 2010 aimed at people in the country illegally. Alabama's law is considered the nation's toughest.

Lawsuits are pending in five of those states. Temporary injunctions have been granted on all or part of the new laws in Arizona, Utah, Indiana and Georgia.

A suit is planned in South Carolina, national advocacy groups such as the American Civil Liberties Union have said.

Federal judges have issued temporary injunctions against laws in Arizona and Utah that -- like Alabama's new statute -- require immigrants to carry registration papers.

Judges also have temporarily blocked laws in Arizona, Utah, Indiana and Georgia that -- like Alabama's -- allow police to detain suspected illegal aliens to check their immigration status.

But the U.S. Supreme Court has upheld a state law similar to Alabama's requiring employers to use the federal E-Verify system to confirm the legal status of new hires or risk losing their business license.

While injunction rulings in other states address some laws similar to Alabama's, several elements of the new Alabama law have not been tested in court, said William G. Ross, a professor at the Cumberland School of Law.

They include:

Requirements that schools check students' and parents' immigration status.
A prohibition on renting to illegal immigrants.
A ban on courts enforcing contracts with known illegal aliens.
Criminal sanctions for people in the country illegally who make any financial transaction with a government, like paying taxes.

Seeking a temporary injunction is one of the first steps in a constitutional challenge to a law.

Plaintiffs must show they are likely to win the case and that harm would result if the law were to go into effect. They also must show a delay would benefit the public and not hurt the litigants.

"That does not mean the law is unconstitutional," Ross said. "It just stops things so there is no irreparable harm to people that could not be remedied."

State vs. fed power
Opponents say the new state laws are preempted by federal authority because the U.S. Constitution gives the federal government broad power to regulate immigration.

When a state law conflicts with a federal law or hinders its enforcement, the federal law prevails, they argue.

But a recent U.S. Supreme Court ruling has given hope to proponents of state laws targeting illegal aliens. A court majority ruled that Arizona could use its state power to license businesses by passing laws banning companies from hiring illegal workers.

State legislators in Alabama and other states have been trying to craft new laws targeting illegal immigrants that fit within the state's inherent power to protect the safety, health and morals of its people, said Ross, who wrote about Arizona's immigrant laws in the May 2010 edition of the legal journal, Jurist.

Alabama's new law requires employers to use the federal E-Verify system after April 2012, and creates licensing penalties for hiring illegal workers. It is likely to be upheld, Ross said.

But the new state requirement for schools to check students' and parents' immigration status could be vulnerable if it is proven to discourage children from attending school, he said.

The U.S. Supreme Court has ruled that undocumented children have the same right to a free public education as citizens.

"If a law discourages people from exercising a constitutional right, the Supreme Court has said many times the law is constitutionally suspect," he said. "I'm not saying that it's necessarily unconstitutional. But it is something that is likely to be stayed."

New state crimes
Another boundary limiting state immigrant laws, recent court rulings have indicated, is when states set criminal and civil penalties.

Federal judges have temporarily suspended enforcement of new state laws that either criminalize behavior that is not criminal under federal law, or laws that also could punish people living in the country legally.

Federal judges have temporarily blocked all criminal penalties in Georgia's and Utah's new laws, and some of the criminal penalties in Arizona's legislation.

But federal judges have differed on new laws in Arizona, Utah and Georgia regarding harboring or transporting illegal immigrants, or encouraging anyone improperly in the country to move or live in that state.

Alabama has a similar law.

Separate judges in Utah and Georgia issued temporary injunctions, but a third judge allowed the Arizona version to go into law after ruling the plaintiffs were not likely to prove the state laws were preempted by federal law.

Final rulings by the trial-level federal judges on the constitutionality of the new state immigrant laws could take months or longer.

Ultimately, as the cases wind through federal appeals, they are likely to be bundled for a potential landmark ruling, Ross said.

"An issue that involves such intense political controversy, such difficult legal questions and such diversity of opinion is a very likely candidate for ultimate adjudication by the U.S. Supreme Court."