11th Cir.: Parts of Alabama anti-immigration law likely violate Constitution

The Eleventh Circuit enjoined parts of Alabama’s anti-immigration law pending a full review of the merits. Though the decision did not bind the merits panel that will soon consider the law’s constitutionality, it indicates that the panel believes that at least parts of Alabama’s law violate the Supremacy Clause of the Constitution. United States v. Alabama, No. 11-14532-CC, 11-14535-CC, 2011 WL 4863957 (11th Cir., Oct. 14, 2011). Judges Carnes, Barkett, and Hull filed the per curiam opinion. Judge Carnes was nominated by President George H.W. Bush. Judge Barkett and Judge Hull were nominated by President Clinton. Judge Barkett partially dissented from the opinion.

This opinion consolidated two challenges to Alabama’s anti-immigration bill known as the “Beason-Hammon Alabama Taxpayer and Citizen Protection Act,” “HB 56” or “the Act.” The Alabama legislature passed HB 56 in June of 2011.  Two legal challenges quickly followed.

The United States government’s challenge to the Act claimed that a number of sections were preempted by federal law and therefore unconstitutional under the Supremacy Clause.  The District Court for the Northern District of Alabama enjoined several key provisions of the law, but dismissed the challenges to other sections. U.S. v. Alabama, Case No. 2:11–CV–2746–SLB, 2011 WL 4469941 (N.D.Ala., Sept. 28, 2011).   Section 11(a), which banned unauthorized aliens from soliciting or applying for work, conflicted with federal law by imposing additional penalties beyond the narrowly tailored sanctions that federal law already imposes for the same conduct.  Section 13(a) banned harboring unauthorized aliens, and it conflicted with federal law because it banned conduct explicitly authorized by Congress.  Section 16 banned deducting wages paid to unauthorized aliens from state taxes. The court found the section expressly contradicted 8 U.S.C. § 1324a(h)(2).  Section 17, which made employers liable for denying employment to citizens and authorized immigrants while employing any unauthorized aliens, also contradicted the same federal statute. Other sections, including Section 28, which required students to present their birth certificates or proof of citizenship to their schools, were not found to be preempted.

The second challenge came from a group of private plaintiffs, including the nonprofit Hispanic Interest Coalition of Alabama. Hispanic Interest Coalition of Alabama v. Bentley, No.5:11-CV-2484-SLB, 2011 WL 5516953 (N.D.Ala. Sept. 28, 2011).  The plaintiffs also claimed that provisions of the Act were preempted. They furthermore argued that several provisions violated other constitutional rights, including the Equal Protection Clause of the Fourteenth Amendment. After a hearing on the parties’ motions for preliminary injunctions, the District Court partially granted the plaintiffs’ motions.   The court denied the plaintiffs’ challenge to the act as a whole because no single plaintiff had standing to challenge every provision.  Turning to the challenges to particular provisions, court agreed that federal law preempted Section 8, which barred aliens without certain forms of identification from attending post-secondary education.  Next it found that the parts of Sections 10(e), 11(e), and 13(h) violated the Confrontation Clause by preventing individuals of presenting evidence of their immigration status.  Subsections 11(f) and (g), which barred soliciting day labor on roadsides, violated the Free Speech Clause by banning more expression than necessary to meet the government’s legitimate interests.  The court denied other challenges because the claims were moot or the plaintiffs lacked standing.  For some facial challenges, such as the challenge to Section 27, which made contracts involving unauthorized aliens unenforceable, the court found the plaintiffs could not prove that the law would violate the Constitution in every single application. For these applications, the court dismissed the challenge and advised the plaintiffs to come back to court in the future with as-applied challenges.

The preliminary injunctions soon expired, and the plaintiffs sought an injunction pending their appeal of the merits.  The district court denied the injunction pending appeal, and the plaintiffs in both cases appealed that decision to the Eleventh Circuit.  A panel of three judges, Carnes, Barkett, and Hull, considered the cases together and filed an opinion partially granting the plaintiffs’ motions for an injunction pending appeal.

The Eleventh Circuit first held that it would enjoin Section 10 of HB 56 pending appeal. Section 10 created a misdemeanor for “willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and the person is an alien unlawfully present in the United States.” The section also required state law enforcement officers to check with the federal government before determining a person’s immigration status. The court recited the four requirements for an injunction pending appeal. First, a plaintiff must show a substantial likelihood of success on the merits of claims. Second, it must show a substantial risk of irreparable injury if the injunction is not granted. Third, it must show an injunction would cause no substantial harm to others. Fourth, it must show that an injunction would cause no harm to the public interest. Without discussing its reasoning, the court concluded that the United States had met its burden, and the court granted the injunction pending appeal against enforcing Section 10.

The court also found the United States satisfied its burden for an injunction against the enforcement of Section 28. That section required public elementary and secondary schools to determine if students were “born outside the jurisdiction of the United States” or if their parents were unlawfully present aliens. The section assured that an individual’s status would not be released, but it mandated that the aggregate data be compiled and reported to the legislature. Again without discussing its reasoning, the court granted the injunction pending appeal.

The court denied the injunctions for the other sections, and emphasized that its decision did not bind the panel that would hear the merits of the parties claims at a later date.

Judge Barkett dissented in part and concurred in part. Unlike the majority, Judge Barkett would have enjoined Sections 12 and 18. Section 12 required law enforcement personnel making any lawful stop, detention, or arrest, to determine the the citizenship and immigration status of the the person detained. Section 18 required law enforcement to transport a person arrested for driving without a license to a magistrate. The magistrate would then be required to determine whether the person was lawfully present in the United States, and if not, alert federal authorities. Furthermore, the law mandated that persons must be considered flight risks and detained until prosecution or until they could be delivered to federal authorities.

The case will soon be argued in front of another panel of Eleventh Circuit judges who will make a comprehensive decision about the merits of all of the plaintiffs’ claims.

Nate Vogel, University of Pennsylvania Law School, class of 2011


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