Saturday, July 9, 2011

Alabama's new immigration law challenged

On July 8, 2011, the Southern Poverty Law Center of Montgomery, Alabama, and the American Civil Liberties Union's Immigrants Rights Project filed a lawsuit in U.S. District Court for the Northern District of Alabama, Northeastern Division, seeking to prevent Alabama's new anti-immigrant law from taking effect on Sept. 1, 2011. The law is also known as HB56.
The bill was passed by the Alabama Legislature on June 2, 2011. Alabama Gov. Robert Bentley signed the bill, making it state law, on June 9, 2011. All provisions of the law will take effect on Sept. 1 except for sections 22 and 23, which concern state law enforcement staffing and coordination, and sections 9 and 15, which concern employment verification and will go into effect in 2012.
That is, unless a federal court judge invalidates, as unconstitutional, all or parts of HB56.
The most interesting aspect of the immigration law is that it creates new state crimes that are tied to one's immigration status or a means or process for determining one's immigration status which, the new law acknowledges, can only be determined by the federal government.
But Department of Homeland Security officials have said its immigration "databases cannot be relied upon to determine immigration status ... because immigration status is dynamic ..." and databases are normally outdated. What I call "garbage in, garbage out." Imagine losing your car, your job, your freedom and your life because your name is "not in the computer", or that's your name alright, but it is attached to someone else's social security number.
In addition to the Supremacy Clause, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment violations represented by the new Alabama immigration law, which I had seen before in the laws passed in Arizona, Georgia, Indiana, Utah, what I found interesting were the First Amendment violations, specifically with respect to the Contracts Clause.
The Contracts Clause of the United States Constitution, specifically Article I, Section 10, says, in part, "No State shall ... pass any ... Law impairing the Obligation of Contracts." Alabama's new immigration law forbids the enforcement of contracts "between a party and an alien unlawfully present in the United States, within the meaning of HB56, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining."
That language is tortured, but I think you get the meaning. This one is the most far-reaching provision in HB56. It will affect all manner of written and oral agreements between and among Alabamians and aliens "unlawfully present". Leases, mortgages, deeds, sales agreements, you name it. It makes it impossible for aliens unlawfully present to live here.
Section 6 makes it illegal to enter into a rental agreement with an alien if the lessor knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of law.
Section 6 also makes it illegal to transport or attempt to transport or move an alien in the state in furtherance of the presence of the unauthorized alien in a means of transportation if the person knows or recklessly disregrards the fact that the alien has come to, has entered, or remains in the United States in violation of law. Violation of this provision subjects your vehicle to mandatory immobilization or impoundment. Violation of this provision is a misdemeanor, unless you're caught transporting 10 or more unauthorized aliens. Then it's a Class C felony.
But the provision that attacks the state's obligations to educate children within its borders is the most draconian, in my view. I have long been a supporter of the DREAM Act, which would enable kids who were brought here from south of the border as babies, to get a college education and contribute to our economy. So section 28(a) took unequivocal action to prevent undocumented children and U.S. citizen children of undocumented parents from attending school.
Section 28(a) requires "[e]very public elementary and secondary school ..., at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the
child of an alien not lawfully present in the United States[.]" It requires educators and teachers to presume that the student is an alien unlawfully present in the United States if the student cannot produce proof of lawful presence within 30 days.
While it is true that the cost of public elementary and secondary school to educate unlawfully present children or the children of unlawfully present alien parents is the single biggest cost of illegal immigration, it is also true that states are required to educate these children in accordance with federal law. To fail to do so will very likely cost the state of Alabama Department of Education, which funds local school boards, around $100 million. My source is the FY2011 Fiscal Stabilization Fund that comes not from Alabamians' tax money, but from the federal government. The feds could pull the money out if Alabama educators and teachers are deemed to be violating federal education policy.
I don't put all of my faith in the courts, even though I'm a lawyer, but I am confident that most federal judges understand the United States Constitution was written to both establish a government and to protect the people from their government. The Fourteenth Amendment, as applied to the states, is the primary tool the federal courts have to protect the people's rights and prevent states from hurting people.
Much of Alabama's new immigration law will likely be struck down as unconstitutional, but depending upon the judge who is assigned to the case, some of the provisions, including the business license provision and/or businesses' mandatory use of E-Verify, might survive.

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