by Ben Winograd
Nearly five months ago, a federal appeals court in Atlanta issued a set
of opinions that invalidated numerous provisions of Alabama HB 56, the
most pernicious state immigration law in the country. After Alabama asked
the full court to reconsider its rulings, the active judges unanimously
rejected its request. Out of other legal options, the state filed a petition
with the Supreme Court on Wednesday seeking to revive some (though not
all) of the invalidated provisions. While the odds remain small that the
Justices will take up the case, granting the petition could set up
another legal showdown similar to the case over Arizona SB 1070.
The petition filed on Wednesday asks the Court to consider the legality
of three distinct but related provisions of HB 56: one which
criminalizes the harboring of immigrants who are unlawfully present; one
which criminalizes the transportation of immigrants who are unlawfully
present; and one which criminalizes encouraging unlawfully present
immigrants to enter the state. In striking down these provisions, the
Atlanta-based U.S. Court of Appeals for the Eleventh Circuit found that
each conflicted with, and was therefore “preempted” by, federal
immigration law—the same legal theory the Supreme Court used to strike down three provisions of SB 1070.
Because of the staggered way in which the Eleventh Circuit resolved
the cases, however, Wednesday’s petition deals only with provisions
struck down in the suit brought by the Department of Justice. As of
today, the state has more than a month left to challenge the ruling in
the separate case brought by civil and immigrants’ rights groups, which
struck down the notorious provision requiring school administrators to
determine the immigration status of students at the time of enrollment.
Of additional importance, Wednesday’s petition did not
challenge the invalidation of numerous other provisions struck down by
the Eleventh Circuit. For example, Alabama declined to defend provisions
of HB 56 that would have made entering a rental agreement itself a form
of “harboring,” and which would have barred courts from enforcing most
contracts with immigrants who are unlawfully present. By failing to
challenge these aspects of the Eleventh Circuit’s ruling, Alabama has
effectively abandoned its legal defense of the provisions.
Filing the petition is just the first step, however. The Justice
Department has until late February to respond, but it could very well
receive at least one extension. Moreover, if Alabama files a second
petition in the suit brought by civil rights groups, the Court would
likely wait until each case is briefed and consider both at once. Under
either scenario, it is possible that the Justices won’t make a decision
before they recess for the summer—in which case an announcement would
not come until the end of September at the earliest.
Whatever the Justices decide, Alabama’s mere filing of the petition
is itself a disappointing development. When Arizona filed its original petition
in the SB 1070 case, it could at least claim that Congress was
abdicating its responsibility to fix our nation’s immigration system.
But with federal lawmakers now poised to finally tackle immigration
reform, Alabama’s petition will serve only as an unwanted distraction.
The Supreme Court made clear that the federal government—and the federal
government alone—is responsible for determining the nation’s
immigration policy. Now that Congress is set to take up the issue,
Alabama should let federal lawmakers do their job.
For More Information Contact us at:
- Eli Kantor
- Beverly Hills, California, United States
- Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; firstname.lastname@example.org. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com