On July 6, the civil rights organizations challenging both Alabama’s “toughest-in-the-nation” immigration enforcement law (HB 56) and Georgia’s similar enforcement law (HB 87) had the opportunity to explain to the 11th Circuit Court of Appeals how the U.S. Supreme Court’s decision on Arizona’s SB 1070 should apply to these cases.
The organizations presented a very straightforward case against two parts of Alabama’s HB 56. Section 10 – creating a new state crime for failing to carry federal registration papers – and Section 11 – creating a new state crime for seeking or engaging in unauthorized work – are virtually identical to two of the parts of Arizona’s SB 1070 that the Supreme Court blocked in June (SB 1070 Sections 3 and 5 respectively).
But the arguments against other sections of Alabama’s and Georgia’s laws are more nuanced. A good example is the challenge to the harboring/transporting sections of HB 56 and HB 87. The logic of the Supreme Court’s decision to block SB 1070 Section 3 (failure to carry federal registration papers) also applies to state harboring and transporting laws, the organizations argue. The Supreme Court held that laws devising a state-level statutory scheme for prosecuting and punishing federal immigration violations (like harboring and transporting) conflict with Congress’s delegation of enforcement discretion to federal officials and threaten to interfere with federal policy choices – even where the state criminal statute attempts to mirror the federal criminal statute.
The civil rights organizations also argue that several of Alabama’s and Georgia’s provisions – even those that share similarities to the SB 1070 “show me your papers” provision (Section 2B) that the Supreme Court let stand – authorize detention for possible unlawful presence in violation of the Supreme Court’s holding. The organizations highlight the Supreme Court’s unambiguous statement that states may not independently authorize detention for possible unauthorized presence without federal direction and supervision. (Slip op. 22) (“[I]t would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.”) This is why the Supreme Court blocked the section of SB 1070 that would have allowed police officers to arrest people without a warrant just because the officers believe they might be deportable (SB 1070 Section 6).
In their briefs, the civil rights organizations ask the 11th Circuit to block states from enforcing laws before they ever go into effect. But the organizations also ask, in the alternative, for the 11th Circuit to request that the Alabama and Georgia state supreme courts clarify certain questions before the federal claims move forward. Why do this? One of the reasons that the Supreme Court hesitated to block SB 1070’s “show me your papers” at this time (that is, before Arizona’s police officers had a chance to enforce it) was because the Court felt that the section’s language was unclear – did it authorize police to detain people longer than they would otherwise be held just to determine immigration status, or didn’t it? Though the Court concluded that this section might not in fact authorize such detention, it also noted that no Arizona state court had never had the opportunity to definitively interpret this state law, which added to its uncertainty. Asking the highest courts in Alabama and Georgia to interpret the sections of these states’ laws relating to policing – HB 56 Sections 12(a), 18 and 19(d) (which have already gone into effect) and HB 87 Section 8 (which has not) – would avoid this problem. And, in order to prevent harm to individuals from the enforcement of a potentially unconstitutional law, the 11th Circuit could decide to be cautious and block these provisions in the interim, while the state courts consider the matter.
The briefs submitted by the civil rights organizations on July 6 also addressed some additional matters. After this year’s Alabama legislature amended Section 8 of HB 56 – which prohibits undocumented students from enrolling in public colleges and universities in the state – the Alabama Attorney General asked the 11th Circuit to reverse its earlier decision to block that section. The civil rights organizations argued against doing so.
Lastly, both parties to the litigation over Alabama’s HB 56 agreed that the federal court’s earlier order blocking the entirety of the state’s harboring law continues to apply.
Please contact CLINIC’s State & Local Advocacy Attorney Karen Siciliano Lucas at email@example.com  or (202) 635-7410 for more information.