Immigration Reform: While Congress Debates, Supreme Court Stays Clear

Article excerpt

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.

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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. …