Tuesday, November 12, 2019

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II. IMMIGRATION: A STORY OF FAILED FEDERALISM

A. Parallel Stories of the Failure of Federalism

      The 1850 Fugitive Slave Act is analogous to current immigration enforcement laws and policies in terms of federal supremacy and congressional deference-- both demonstrate the failure of federalism. In the case of fugitive slaves, the states could not agree and the federal government was relatively powerless to enforce the desires of the southern states until 1850. The underlying problem, of course, was a fundamental disagreement about the meaning of personhood and citizenship. The southern states felt quite comfortable abusing African Americans' rights because they strongly believed that slaves were property and they were not intended to become citizens. The fundamental disagreement with the northern states on this issue made political compromise impossible.

      The immigration story is an example of reverse-federalism. States are currently frustrated by the federal government's relative inaction on the immigration front. Accordingly, states like Alabama, Arizona, Utah, and Georgia have begun enacting their own immigration laws. The state immigration laws will have a significant impact on immigrant rights. This section examines the reverse federalism story and the extent to which current federal immigration enforcement policy reinforces state and local actors enacting their own immigration laws against both citizen and noncitizens' rights--especially those who look or sound foreign.

      Similar to the time when the 1850 Fugitive Slave Act was enacted, there is currently a conflict amongst states and localities about how to address immigrants within their communities. Recently, various states and localities have enacted laws targeting immigrants while others have enacted laws that give sanctuary to immigrants within their communities.

      When discussing federal authority over immigration, most dialogues start with the proposition that immigration went largely unregulated until the federal government first exerted authority over immigration in the early twentieth century. Discussions related to federal supremacy in the area of immigration are often based on the plenary powers doctrine to justify federal control over immigration without a detailed examination of the historical underpinnings of the federal immigration system.

      Recently, immigration scholars have focused on the relationship between federal, state, and local governments in regulating immigration. States and localities claim that they should be able to use their Tenth Amendment police powers to regulate immigrants within their borders, while the federal government claims exclusivity in the area of immigration law and policy.

      One striking similarity between the Fugitive Slave Acts and current immigration laws is that the 1850 Act created a unique federal law enforcement institution that removed power from state and local hands. The Thomas Sims case perfectly illustrates the parallel. Thomas Sims, a fugitive slave, escaped to Massachusetts and began working. A few years later, his former owner located him in Massachusetts and sought his return. The former owner went through a commissioner to obtain a certificate of removal and then sought to arrest Sims. Instead of using U.S. Marshals to enforce the certificate of removal, the federal government deputized state and local officials as federal agents to enforce the provisions of the 1850 Act. City policemen were hastily sworn in as deputy federal marshals and effectuated the arrest. They ignored the Massachusetts personal liberty law, which stated that Massachusetts would not comply with the 1850 Act and return fugitive slaves to slave states in the South. Despite the clash between federal and Massachusetts law, Sims was returned to Georgia as a fugitive slave.

B. States and Localities Take Action

      Currently, states and localities argue that the federal government fails to enforce existing federal law governing the removal of immigrants within their borders. For example, the Immigration and Nationality Act (INA) § 287(a) gives U.S. Immigration and Customs Enforcement (ICE) the power to interrogate any person believed to be a noncitizen regarding his or her right to be present in the United States and to arrest noncitizens for violation of immigration laws. Further, INA § 287(g) empowers the federal government to enter into agreements with states and localities to apprehend and deport undocumented immigrants. States and localities believe that the federal government is not effectively implementing these types of federal provisions and, as a result, have begun enacting their own laws that mimic §

1. Arizona: S.B. 1070

      Arizona has perhaps the most controversial law, which overtly permits its state and local law enforcement officials to exercise federal immigration powers. In April 2010, Arizona passed S.B. 1070: The Support Our Law Enforcement and Safe Neighborhoods Act. Its purpose is to use state and local government actors to target undocumented immigrants in order to increase the attrition of undocumented immigrants out of the state.

      Under the law, any person who the police reasonably suspect of being an undocumented immigrant may be subject to detention and questioning regarding their immigration status. Section 2 requires officers to make a reasonable attempt, when practicable, to determine an individual's immigration status during any lawful stop, detention, or arrest already effected. Section 2 also requires that all arrested persons have their immigration status determined prior to release. Further, Section 2 describes who may verify immigration statuses and lists documents that create a presumption of lawful presence. These provisions closely resemble the federal immigration powers of INA §

      Section 3 of S.B. 1070 criminalizes the failure to carry an alien registration document at the state level. Section 3 provides that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or § 1306(a), which are analogous federal statutes. A first offense is a class one misdemeanor, punishable by up to twenty days of incarceration and up to a $ 100 fine. The second offense is punishable by up to thirty days of jail time.

      The Arizona law was challenged in United States v. and Friendly House v. Whiting. The Whiting lawsuit alleged that S.B. 1070 interferes with federal immigration law in violation of the Supremacy Clause, causes racial profiling in violation of the Equal Protection Clause, and violates the Free Speech Clause of the First Amendment. One of the plaintiffs, Jim Shee, is an American citizen of Spanish and Chinese descent and is fluent in Spanish. Despite having lived in Arizona his entire life, he alleges that the police have racially profiled him twice in a single month and asked him to produce his citizenship papers. Shee fears that the bill's implementation would increase the incidence of these frustrating situations. Recently, in United States v. Arizona, in June 2012, the Supreme Court struck down the Arizona law as constitutionally preempted with the exception of section 2, which requires the police to check the immigration status of persons whom they detain before releasing them. The Court found that the law's mandate for state and local police offers to make reasonable attempts to determine the immigration status of a detained person does not interfere with federal immigration laws.

2. Alabama: House Bill 56

      More recently, Alabama passed House Bill 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. Opponents of the bill claim that Alabama Governor Robert Bentley “touted HB 56 as ‘the strongest immigration bill in the country’ and a co-sponsor of the bill boasted that it regulates ‘every aspect of a person's life.”’ The ACLU alleges that H.B. 56 is “[a] shocking throwback to the days of de jure segregation, [and] attempts to make a class of individuals non-persons in the eyes of the

      H.B. 56 asserts there is “a compelling public interest to discourage illegal immigration by requiring all agencies within [Alabama] to fully cooperate with federal immigration authorities in the enforcement of federal immigration This law goes even further than Arizona's, authorizing the Alabama Department of Homeland Security to hire and maintain its own immigration enforcement body. Like Arizona's S.B. 1070, H.B. 56 Section 12(a) requires a law enforcement officer to make a reasonable attempt to determine the immigration status of a detained person when reasonable suspicion exists that the person is an unlawful alien. Further, H.B. 56 Section 18 allows police to detain persons found driving without a proper license for up to forty-eight hours to determine their immigration status. The most controversial part of the statute requires an assessment of immigration status for every student in Alabama public schools when the student enrolls.

      On July 8, 2011, the Hispanic Interest Coalition of Alabama filed a lawsuit against the state alleging that federal immigration law preempts H.B. 56. Specifically, the complaint claims that:

       HB 56 will subject Alabamians--including countless U.S. citizens and non-citizens who have permission from the federal government to remain in the United States--to unlawful interrogations, searches, seizures, and arrests, and will result in racial profiling. This is because HB 56 mandates law enforcement officers to investigate the immigration status of any individual they stop, detain, or arrest when they have “reasonable suspicion” that the individual lacks immigration status. Individuals who may be perceived as ““foreign” by state or local law enforcement agents will be in constant jeopardy of harassment and unlawfully prolonged detention and arrest by state law enforcement officers operating under HB 56's new immigration enforcement mandates. And all Alabamians will be required to carry state-approved identity documentation in order to prevent lengthy investigations as to their status.

      Like the Supreme Court in the Arizona case, the district court judge refused to enjoin Section 12 of the Act, which requires state and local law enforcement officials to try to verify a person's immigration status during routine traffic stops or arrests. The court also denied the injunction of Section 10, which criminalized the willful failure of a person in the country illegally to carry federal immigration papers, because the sections were not preempted by federal law. Like the laws that violated the rights of fugitive slaves, Alabama's law is reminiscent of “pervasive and systematic targeting of a class of persons through punitive state laws that seek to render every aspect of daily life more difficult and less

3. Georgia's Illegal Immigration Reform and Enforcement Act

      Another timely example is the Georgia Illegal Immigration Reform and Enforcement Act of 2011. The statute provides criminal sanctions for identity fraud and transporting or harboring an illegal alien. The status also contains provisions similar to the Act of 1850, broadly allowing certain federal documents and oral testimony to summarily establish a person's unlawful status. The law further provides that during an investigation, upon probable cause, state and local police officers may verify such suspect's immigration status when the suspect is unable to provide one of the following: (1) A secure and verifiable document as defined in [the Georgia law]; (2) A valid Georgia driver's license; (3) A valid Georgia identification card issued by the Department of Driver Services; (4) If the entity requires proof of legal presence in the United States before issuance, any valid driver's license from a state or district of the United States or any valid identification document issued by the United States federal government; ... (6) Other information as to the suspect's identity that is sufficient to allow the peace officer to independently identify the suspect.

      Like the 1793 Fugitive Slave Act, this law empowers the state to exercise federal enforcement powers.

      Similar to the Arizona and Alabama laws, the Georgia law was challenged in Georgia Latino Alliance for Human Rights v. Deal. The lawsuit alleged that the Georgia statute violates the Equal Protection and Due Process Clauses by unlawfully discriminating against people based on national origin. The plaintiff, Jaypaul Singh, is a U.S. citizen of South Asian descent, who permanently resides in Washington state. Singh, a law student, spends summers in Atlanta as a law clerk. He has a Washington driver's license, but that state does not determine an applicant's immigration status before issuing a license. Thus, his license is insufficient to verify his immigration status under the new Georgia law. Singh fears that he might be subjected to a long detention while police try to ascertain his immigration status.

4. Utah: H.B. 497

      In Utah, the recently passed H.B. 497 requires state and local law enforcement officers to verify the immigration or citizenship status of individuals they encounter who are unlawfully present in the United States. Plaintiffs in Utah Coalition of LaRaza v. Herbert alleged that the statute violates the Equal Protection Clause because it encourages racial profiling of Latinos and anyone who looks or sounds foreign. Similar to the Arizona and Georgia profiling stories, one plaintiff, Milton Ivan Salazar-Gomez, is a resident of Salt Lake City, Utah, and fears that he will be subject to racial profiling. Although he has lived in the United States for nearly his entire life, he is a Mexican national whose parents brought him to the United States when he was ten months old. Salazar-Gomez was stopped for driving with expired tags and turned over to federal immigration officials. Following two months of detainment, he was released and now fears that he might be stopped and harassed during the pendency of his removal proceedings.

C. State Laws Demonstrate a Failure of Federalism

      The Arizona, Alabama, Georgia, and Utah laws mirror INA § 287(a), which provides federal officers the right to interrogate persons believed to be in the United States without authorization. Reminiscent of personal liberty laws, states claim they are inclined to pass anti-immigrant laws because the federal government is not taking action to remedy unauthorized immigration. Both the Fugitive Slave Acts and current state immigration laws demonstrate the failure of federalism. The underlying problem in both cases is a fundamental disagreement couched in terms of federalism that pits states' powers against citizens' civil rights. The current passage of state immigration laws represents reverse-federalism. States like Alabama, Arizona, Utah, and Georgia are responding to federal inaction and are enacting their own immigration laws, whereas the era of the 1850 Act witnessed the federal government taking supreme authority over the regulation of fugitive slaves.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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