Responding to a lawsuit for injunctive relief filed by the United States against Alabama’s far-reaching immigration law, a district court held that several of the law’s provisions aimed at curbing illegal immigration are not preempted by federal law. Amongst the provisions that were upheld are: a provision that, under certain circumstances, “creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document;” a provision that, under certain circumstances, requires law enforcement officers to determine the citizenship and immigration status of a person; and a provision that “requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.” The district court did, however, grant a preliminary injunction against four of the law’s provisions. United States v. Alabama, No. 2:11-CV-2746-SLB, 2011 WL 4469941 (N.D. Ala. Sept. 28, 2011). Judge Sharon Blackburn, a George H.W. Bush nominee, wrote the opinion.
On June 9, 2011, Alabama Governor Robert Bentley signed into law House Bill 56 (“H.B. 56”), known as the “Beason-Hammon Alabama Taxpayer and Citizen Protection Act.” Ala. Laws 2011-535. The stated purpose of H.B. 56 is “to discourage illegal immigration by requiring all agencies within [Alabama] to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws.” H.B. 56 § 2. The Act contains numerous provisions aimed at discouraging illegal immigration.
Arguing that various provisions of H.B. 56 are preempted by federal law, the United States filed a lawsuit against Alabama in early August seeking declaratory and injunctive relief. On August 29, 2011, the district court temporarily enjoined the Act from going into effect until September 29, 2011. In its latest opinion, the district court addressed the United State’s preemption argument.
After discussing federal immigration law and principles of preemption, the court moved on to H.B. 56. Because the Act contains a severability provision, the district court addressed, and ruled on, the challenges to H.B. 56 on a section-by-section basis.
H.B. 56 § 10 – denied preliminary injunction against this provision.
H.B. 56 § 10 “creates a criminal misdemeanor violation under Alabama law 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 is unlawfully present in the United States.”
The district court rejected the United States’ argument that this provision is preempted by the federal alien registration scheme. The court reasoned that although the provision complements the federal scheme, it does not frustrate it. The court also declined to follow the recent Ninth Circuit decision that enjoined Section 3 of Arizona’s recent immigration law, which is “substantially similar” to H.B. 56 § 10. See United States v. Arizona, 641 F.3d 339, 354-57 (9th Cir. 2011). The court found Arizona to be unpersuasive on this point because of the Ninth Circuit’s apparent failure to explain how the Arizona law was inconsistent with Congressional intent. The court also rejected the United States’ argument that Section 10 is unlawful because, by criminalizing unlawful presence in the United States, it creates an obstacle for the federal government to achieve its foreign policy goals.
H.B. 56 § 11(a) – granted preliminary injunction against this provision.
H.B. 56 § 11(a) “makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.”
The district court accepted the United States’ argument that this provision is preempted by federal law because Section 11(a) “seeks to override Congress’s determination that criminal sanctions should not attach to the solicitation or performance of work by unlawfully present aliens.” The court concluded that Congress made a clear choice in the Immigration Reform and Control Act to combat the unlawful employment of unauthorized employees by sanctioning employers, not employees. See 8 U.S.C. § 1324a(b)(5).
H.B. 56 § 12(a) – denied preliminary injunction against this provision.
H.B. 56 § 12(a) “requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.”
As in United States v. Arizona, the United States here argued that Section 12(a) was “preempted because it [would] result in the harassment of lawfully present aliens and [would] burden federal resources and impede federal enforcement and policy priorities.” See Arizona, 703 F. Supp. 2d at 993. Quoting Judge Bea’s dissent in Arizona at length, Judge Blackburn agreed with Judge Bea that the government’s argument fails because federal law allows local law enforcement to assist in enforcing the federal immigration laws. Because, in Judge Blackburn’s view, local law enforcement officers acting pursuant to Section 12(a) are required to “cooperate” with the federal government, she declined to issue a preliminary injunction against this provision.
H.B. 56 § 13 – granted preliminary injunction against this provision.
H.B. 56 § 13 “makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.”
After explaining that Congress has enacted a comprehensive sanction scheme for third parties who aid those who unlawfully enter the United States, the district court held that this provision is preempted by federal law. See 8 U.S.C. § 1324. Noting that Section 13 criminalizes activity that is expressly allowed under federal law, the court rejected Alabama’s argument that Section 13 is not preempted because it is a “mirror image” of federal law. The court also found that Section 13 creates additional regulations not prohibited by the comprehensive federal scheme, and that it allows Alabama courts to interpret Section 13 without regard to federal precedent.
H.B. 56 § 16 – granted preliminary injunction against this provision.
H.B. 56 § 16 “forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.”
The district court held that this provision qualifies as a “sanction,” and is thus preempted by federal law. See 8 U.S.C. §1324a(h)(2) (“The provisions of this section preempt any State or local law imposing civil or criminal sanctions . . . upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”).
H.B. 56 § 17 – granted preliminary injunction against this provision.
H.B. 56 § 17 “establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.”
The district court also held that this provision is preempted by the same federal law that preempts Section 16. See 8 U.S.C. §1324a(h)(2). The court reasoned that this provision qualifies as a “sanction” against hiring or retaining unauthorized aliens, which is specifically preempted by federal law. See id.
H.B. 56 § 18 –denied preliminary injunction against this provision.
H.B. 56 § 18 “amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.”
Disagreeing with the United States’ contention that this provision is preempted because it enforces “the federal government’s own immigration laws in a manner that is non-cooperative” with the federal government’s enforcement, the district court upheld this provision. The district court noted that its reasons for upholding Section 12(a) are applicable here as well.
H.B. 56 § 27 – denied preliminary injunction against this provision.
H.B. 56 § 27 “bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.”
The United States argued that this provision is preempted because Congress did not intend that unauthorized aliens’ contracts are categorically unenforceable. Replying that there is no evidence that Congress intended that contracts entered into by unauthorized aliens are enforceable, the district court dismissed the United States’ argument and upheld this provision.
H.B. 56 § 28 –denied preliminary injunction against this provision.
H.B. 56 § 28 “requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.”
The United States argued that this provision is preempted as an “impermissibl[e] . . . registration scheme for children (and derivatively their parents) akin to the one the Supreme Court invalidated in Hines.” See Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The district court rejected this argument, reasoning that Section 28 is distinguishable from the registration scheme in Hines. According to the court, Section 28, unlike the scheme in Hines, is permissible because it “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 court also rejected the government’s argument that Section 28 conflicts with the federal government’s foreign policy goals.
H.B. 56 § 30 – denied preliminary injunction against this provision.
H.B. 56 § 30 “makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.”
The district court began its analysis of this provision by explaining its intended purpose, which is to prohibit Alabama from issuing a “license” to unauthorized aliens. The court also explained the breadth of the term “license”: “Alabama issues licenses to drivers and businesses, but also to professionals, hospitals, day care facilities, and a myriad of other individuals giving them permission to conduct business or ‘do that thing’ the license allows.” Turning to the preemption issue, the court concluded that this provision is not preempted by federal law because Congress has never limited a state’s power to refuse an unauthorized alien a license.
–Scott Herrig, University of California, Berkeley-School of Law 2012
