Appeals Court Draws Boundaries on Alabama's Immigration Law

NEW YORK TIMES

By Campbell Robertson and Julia Preston

August 21, 2012

http://www.nytimes.com/2012/08/22/us/appeals-court-limits-alabamas-immigration-law.html

When Alabama'’s immigration law was passed in the spring of 2011, it was the boldest test yet of the doctrine of self-deportation. "If the state put up legal obstacles to nearly every aspect of illegal immigrants’ lives," as a chief sponsor of the law put it at the time, "it would “make their lives difficult and they will deport themselves.”"

While other states had levied sanctions against employers and empowered the police to check for citizenship status, Alabama'’s law staked out new territory, shutting off access for those in the state illegally to virtually every facet of regulated life, from water utilities to rental agreements to dog tags.

In the year since the law went into effect, that new territory has significantly shrunk.

On Monday, the United States Court of Appeals for the 11th Circuit issued three decisions that assessed Alabama'’s law as well as a similar law in Georgia. The findings did not dramatically change the reality on the ground, for the most part continuing to block provisions already on hold, and even allowing two sections currently blocked to go into effect.

But the findings were the first broad determinations by an appeals court since the Supreme Court’s decision in June on an immigration enforcement law in Arizona. And while the judges applied the Supreme Court’s ruling, they also went considerably beyond it, blocking statutes in Alabama and Georgia that the highest court had not directly considered.

On the Alabama law, the appeals court struck down many of the measures that had gone furthest in making the everyday lives of illegal immigrants so difficult.

"“It put pretty serious limitations on what states can do,"” said Mary Bauer, the legal director of the Southern Poverty Law Center, which has been a leader in lawsuits against the state. “"They certainly can'’t do it in this wholesale way that Alabama tried to do.”"

The law had sought to render any contract with an illegal immigrant unenforceable, to make it a state crime for such immigrants to apply for jobs and to make the “willful failure” of an immigrant to carry legal documents at all times a crime as well. Among its most hotly debated provisions, the law required public schools to verify the immigration status of students and their parents at the time of enrollment, and to keep a tally of children in the school system who are here illegally.

In striking down those provisions, the judges drew on the Supreme Court’s ruling on the Arizona law but also cited a wider range of high court decisions concerning the balance between states and the federal government on immigration.

"“We are convinced that Alabama has crafted a calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state,"” the judges wrote. They concluded that policy was in direct conflict with federal law.

Significantly, the court in Atlanta, which is not known as especially liberal, found that Alabama'’s statute requiring schools to keep a record of illegal immigrants was a violation of equal protection guarantees, without referring to Arizona. That decision was the harbinger of a new phase of arguments over immigration, which will focus more on the civil rights impact of state action and less on conflicts between state and federal authority.

Lawyers and activists who had helped Alabama and Georgia to craft their laws were sharply critical of many parts of Monday’s ruling.

“"Given what'’s been going on it’s hard to understand what recourse states are left with if they want to cooperate in enforcement of our immigration laws,"” said Dan Stein, president of the Federation for American Immigration Reform, which has drawn up templates for many state laws.

The backers of the law did have some victories to claim in the rulings.

Echoing the Supreme Court, which upheld Arizona’'s measure authorizing the police to inquire about immigration status, the judges allowed similar though even tougher provisions in Alabama'’s law. The appeals court also lifted a hold on a provision that made it a crime for illegal immigrants to obtain certain licenses, like car tags or professional licenses.

The judges said they allowed that provision to go into effect because the Alabama legislature itself had significantly narrowed its scope this summer, restricting its application from practically every government activity, including pet tags, to six specific licenses, some of which were already forbidden for illegal immigrants anyway.

While some of the law’s staunchest backers have expressed dismay about the whittling away of the law, other Alabama lawmakers said this was simply part of the process of finding out what would stand.

“"The sponsors of this bill were very clear that they wanted to push the envelope, that they did want to test the law,"” said State Senator Bryan Taylor of Alabama, a Republican.

He said that the provisions of the law that have gone either unchallenged or have been upheld, such as obligating police to check for immigration status, were the parts he had most strongly supported. Some other parts of the law, which made it an outlier compared with other states, Senator Taylor said he had little confidence would survive anyway.

"“I was ultimately comfortable voting for the bill knowing some of the provisions I objected to would be blocked, but also knowing that provisions I supported would be left in there,"” he said.