Immigration reform: While Congress debates, Supreme Court stays clear

In this 2011 file photo, people march to protest Alabama’s immigration law in Athens, Ala.

The US Supreme Court turned aside an appeal on Monday from the state of Alabama asking the high court to examine whether state governments can pass laws making it illegal to harbor or smuggle illegal immigrants within a state’s borders.

The court action came without comment from the justices. The order noted that Justice Antonin Scalia dissented from the court’s decision not to hear the case.

The denial comes as Congress and the White House are working toward an immigration reform package.

At issue in Alabama v. US (12-884), was an Alabama statute that sought to echo the requirements of federal immigration laws that outlaw similar activities.

It was patterned on a controversial immigration law passed in Arizona in 2010 aimed at discouraging illegal immigrants from coming to or remaining in Arizona.

While Alabama argued that its statute was substantively different from those portions of Arizona’s law previously struck down by the Supreme Court, the justices’ refusal to take the case lets stand an appellate court ruling that the Alabama law was preempted by federal immigration law.

Eight other states have similar laws that seek to regulate activities related to the presence of illegal immigrants within state borders. They were adopted in an attempt to compensate for what state officials viewed as lax or ineffective enforcement of US immigration laws by the federal government.

Like it did regarding Arizona’s SB 1070, the Obama administration opposed the Alabama law and successfully sued the state in federal court to prevent it from enforcing any statute that might touch on issues involving illegal immigrants.

That posture toward the states set the stage for a constitutional confrontation pitting the authority of the national government to set immigration enforcement priorities against the power of the states to protect state residents within their own borders.

The Obama administration’s crackdown against aggressive state immigration laws also dove-tailed with a political strategy in the president’s reelection campaign. Candidate Obama used the state-federal disputes and the promise of a kinder, gentler immigration posture by his administration to appeal to Latino voters.

(It worked. In November, the president received 71 percent of the Latino vote.)   

Last June, the Supreme Court invalidated three sections of Arizona’s SB 1070, saying they were preempted by federal immigration law. But the justices also upheld the law’s controversial centerpiece – the “show-me-your-papers” provision that ordered police to check the immigration status of anyone they had reason to suspect were in the US without authorization.

The question in the Alabama case was whether Alabama’s anti-harboring statute is preempted by federal immigration laws and the more forgiving immigration enforcement priorities of the Obama administration.

In general, laws passed by Congress are the supreme law of the land and thus preempt state laws that either intrude into an area of federal power or conflict with an existing federal statute.

The portion of the Alabama law that was being appealed involved state prohibitions on harboring, inducing the arrival, or transporting illegal immigrants in Alabama.

“These provisions are markedly different from the ones this court invalidated in [the Arizona case],” Alabama Solicitor General John Neiman wrote in his brief to the court.

Mr. Neiman said that rather than attempting to regulate the actions of the illegal immigrants themselves (an area of federal authority), the Alabama statute sought to regulate state residents engaged in unlawful activity that was related to illegal immigrants.

That distinction, Neiman said, differentiated the anti-harboring law from the portions of the Arizona statute struck down last year by the Supreme Court.

“The United States makes no attempt to justify equating laws that operate directly on aliens with those that operate on citizens,” the Alabama solicitor general wrote.

US Solicitor General Donald Verrilli urged the court to not take up the Alabama case. He said the Eleventh US Circuit Court of Appeals ruled correctly when it decided that the Alabama law was preempted by federal immigration law.

Mr. Verrilli quoted the Supreme Court’s decision in the Arizona case. “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” he wrote. “Whatever power a state may have [related to immigration] is subordinate to supreme national law.”

Washington has wide discretion in every area touching on immigration and immigration enforcement, he said.

“The federal government’s exclusive authority to regulate the terms and conditions of an alien’s entry, movement, and residence in the United States includes the authority to establish criminal sanctions against third parties who facilitate an alien’s violation of those terms and conditions and the authority to decide whether and how such criminal sanctions may be imposed,” the solicitor general said.

“Because Congress has occupied this entire field, even complimentary state regulation is impermissible,” Verrilli wrote. He said the Alabama statute “stands as an obstacle to the operation of federal law.”

Congress provided that state and local law enforcement officials have the authority to arrest individuals for violations of federal immigration law, but it is up to federal officials to decide when – or whether – to prosecute those who are arrested, according to the government’s brief.

Arizona and eight other states had asked the high court to take up Alabama’s appeal. They are Colorado, Florida, Georgia, Indiana, Kansas, Michigan, Oklahoma, and South Carolina.

The states’ friend of the court brief said the Eleventh Circuit went too far when it ruled that a state law with any connection to immigration is preempted unless specifically authorized by Congress.

“No interest is more fundamental or substantial than the States’ interests in protecting their residents from harm,” the friend of the court brief said.

“Some criminal organizations profit by providing the means for illegal entry or transport, or a safe harbor within the United States for unauthorized aliens,” the brief said. “Other organized crime groups and terrorists exploit immigrants who seek to come to or remain in the United States by forcing the immigrants to commit other crimes, such as drug running or prostitution.”