{"id":3858,"date":"2011-10-21T11:25:24","date_gmt":"2011-10-21T15:25:24","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3858"},"modified":"2016-11-16T20:36:17","modified_gmt":"2016-11-17T01:36:17","slug":"alabamas-hb-56-federal-vs-state-immigration-enforcement","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/alabamas-hb-56-federal-vs-state-immigration-enforcement\/","title":{"rendered":"Alabama's HB 56: Federal vs. State Immigration Enforcement"},"content":{"rendered":"

Last week, the Eleventh Circuit in Atlanta issued an injunction<\/a> on two provisions of Alabama\u2019s recent immigration law (known as HB 56), which the Alabama legislature passed in June.\u00a0 The Eleventh Circuit temporarily suspended two sections of HB 56, including the section making it a criminal misdemeanor for failing to carry registration documents and the section requiring every public elementary and secondary school to determine a student\u2019s immigration status at the time of enrollment.\u00a0 The Eleventh Circuit will hear the case in the next few months, and the Supreme Court may be the final arbiter of this case.<\/p>\n

As states pass tough immigration laws like Alabama\u2019s HB 56 and Arizona\u2019s SB 1070, a critical question emerges: to what extent should states and localities be able to enforce federal immigration law?\u00a0 States that have passed provisions such as requiring local law enforcement to make a \u201creasonable attempt\u201d to determine a stopped driver\u2019s citizenship status or making it unlawful to conceal an undocumented immigrant argue that they are simply filling in gaps<\/a> where the federal government has failed to enforce the law.\u00a0 States also argue that their laws are reflections of existing federal law\u2014for example, their laws mirror ones such as 8 U.S.C. \u00a7 1324(a)(1)<\/a>, where it\u2019s an offense to conceal or harbor an undocumented resident, or 8 U.S.C. \u00a7 1324A(a)<\/a>, which prohibits employers from knowingly hiring an undocumented immigrant.<\/p>\n

On the other hand, opponents and the Justice Department argue that the federal government maintains the exclusive authority to determine a person\u2019s immigration status and to regulate immigration.\u00a0 Under the Supremacy Clause<\/a>, the Constitution and federal law preempt state law; Article I, Section 8<\/a> grants Congress the power to \u201cto establish a uniform rule of naturalization \u2026 throughout the United States.\u201d\u00a0 And the Supreme Court has held<\/a> in various cases that only the federal government has the authority to regulate immigration.<\/p>\n

Courts will soon have to decide whether these current state provisions are encroaching upon the federal government\u2019s domain.\u00a0 And outside the court system, we desperately need comprehensive immigration reform to create a practical and fair way to address our over 12-million<\/a> undocumented residents.\u00a0 Although comprehensive reform needs much more than enforcement mechanisms to fix the system (including policies that address labor\/employment conditions, smuggling, tax payments, pathways to higher education, borders, or routes to residency\/citizenship, to name a few), local enforcement has become a highly contested issue that is inconsistently applied from place to place.\u00a0 Thus, immigration reform will also need to address the extent of state and local involvement in enforcing federal immigration law.<\/p>\n

Looking at what states are currently doing, local enforcement first appears to be expensive<\/a>.\u00a0 As states start creating their own enforcement laws, a lot of litigation will emerge.\u00a0 It will be costly and time intensive to litigate different states\u2019 laws to decide whether they have exceeded federal power.\u00a0 The laws themselves are also costly\u2014when local law enforcement takes on the additional burden of immigration enforcement, it has less money and fewer resources for pressing law enforcement needs. \u00a0In one Arizona county, debt increased<\/a> by $1.3 million with three months of immigration enforcement.\u00a0 The laws can also undermine local law enforcement\u2019s ability to protect our communities.\u00a0 Police may have lower clearance rates<\/a> or higher response times with added responsibilities.\u00a0 Fear<\/a> of law enforcement can cause non-citizens and citizens alike to stop reporting crimes to the police.\u00a0 And local enforcement can also decrease community cooperation<\/a> or heighten racial tensions<\/a>, creating a general environment of distrust.<\/p>\n

States can also push constitutional limits with local enforcement.\u00a0 Before the injunction, HB 56\u2019s education provision (which requires schools to inquire about a student\u2019s legal status) kept many students away from school<\/a>, and families experienced a greater obstacle to educational accessibility.\u00a0 The provision tests the Supreme Court\u2019s ruling in Plyler v. Doe<\/a> and subsequent decisions holding that undocumented immigrants have constitutional rights and protections.\u00a0 In Plyler, the Court struck down a Texas statue that allowed school districts to deny enrollment to undocumented immigrants, as it violated equal protection.<\/p>\n

This doesn\u2019t mean that state and local governments shouldn\u2019t have any power over immigration enforcement.\u00a0 With 12 million out-of-status residents, perhaps the federal government can\u2019t tackle<\/a> immigration enforcement without states\u2019 help and perhaps states are better equipped for this task.\u00a0 But if that is the case, legislators should actually look at the data to see what is happening at the community level, assess what types of local immigration participation truly work, and provide more guidelines to the states.\u00a0 It\u2019s important that comprehensive immigration reform addresses this issue of state participation to promote sensible and fair immigration policies throughout the country.<\/p>\n","protected":false},"excerpt":{"rendered":"

Last week, the Eleventh Circuit in Atlanta issued an injunction on two provisions of Alabama\u2019s recent immigration law (known as 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