By Attorneys Robert L. Reeves and Eric. R. Welsh

On Thursday, June 2, 2011, the state of Alabama passed a bill that permits its police officers to detain a person if the police officer has a “reasonable suspicion” that the person does not have any lawful immigration status in the United States.  The Alabama immigration bill also provides additional penalties for businesses that hire undocumented workers.  Last May 2011, the state of Georgia passed a similar bill, giving its police authority to question a criminal suspect about his immigration status.  Utah and Indiana have done the same.  All of these bills are “copy cat” versions of the highly controversial legislation that was passed in Arizona in April 2010.  The Arizona bill provides authority to police to stop and detain a person that the police “reasonably suspect” to be without immigration status.  The Arizona bill provides broad authority to police to interrogate a person about his or her immigration status, and to detain a person suspected of having no lawful immigration status, even if the person is only stopped for a traffic violation.  In addition, the Arizona bill requires all non-citizens to carry proof of lawful status with them at all time, thus providing penalties even to lawful permanent residents who leave the house without their green card.  Immigration bills similar to those passed in Arizona, Utah, Indiana, Georgia, and Alabama are being debated in statehouses in Oklahoma, South Carolina, Wisconsin, Tennessee, and other states.

The opposition to these bills has been loud and impassioned.  Many consider the bills a form of state-sponsored racial profiling, permitting police to treat persons as suspected criminals simply because they do not look like a native U.S. citizen.  Others have decried the proof-of-status requirement, calling it “Gestapo-like,” causing non-citizens to fear harassment from the police that are supposed to protect them, and refusing non-citizens basic services and access to state facilities merely because they do not possess the right documents.  Businesses, tourism boards, and immigration advocates have all expressed serious concerns about the chilling effect these new laws have on lawful immigration, tourism, and commerce, noting that even law-abiding permanent residents have refused to travel to or conduct business with states with repressive immigration policing, and entrepreneurs are less likely to open and operate businesses in these states.  

The American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), and other civil rights groups have filed class action lawsuits challenging the constitutionality of the Arizona bill and its copycats.  The ACLU and the NILC contend that these bills violate basic principles of equal protection, due process, and criminal procedure (such as the Fourth Amendment protection against unreasonable searches and seizures), and unfairly restrict the fundamental right to travel freely throughout the United States.  In addition, challengers contend that these bills violate the Supremacy Clause of the Constitution by attempting to usurp the authority of the U.S. Federal Government to make and enforce American immigration laws.  The individual states, by authorizing their police to enforce new state-made immigration laws, impedes the ability of the Federal Government to make uniform immigration policies, and unlawfully strips the Federal Government of its ability to exercise discretion in the enforcement of federal immigration laws.  

Arizona and Georgia have already expended millions of dollars defending legal challenges to their legislation, and other states are facing similar litigation costs.  In addition, states that have passed these restrictive laws are estimated to be losing millions annually in state revenue.  These financial disincentives, coupled with early successes of the legal challengers (an appeals court in Arizona recently upheld the decision of a lower court striking down many of the most controversial aspects of the Arizona bill) should give hope to those who oppose these bills, yet the wave of states attempting to pass similar legislation is still growing.  These laws are discriminatory and fundamentally unfair, yet their passage is met with applause from groups that feel that America needs tougher enforcement of its immigration laws.  Although the immigration system is far from perfect in the United States, its imperfections cannot be resolved by violating basic principles of equal protection, privacy, and individual dignities.

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