Last week, the Eleventh Circuit in Atlanta issued an injunction on two provisions of Alabama’s recent immigration law (known as HB 56), which the Alabama legislature passed in June. The Eleventh Circuit temporarily suspended two sections of HB 56, including the section making it a criminal misdemeanor for failing to carry registration documents and the section requiring every public elementary and secondary school to determine a student’s immigration status at the time of enrollment. The Eleventh Circuit will hear the case in the next few months, and the Supreme Court may be the final arbiter of this case.
As states pass tough immigration laws like Alabama’s HB 56 and Arizona’s SB 1070, a critical question emerges: to what extent should states and localities be able to enforce federal immigration law? States that have passed provisions such as requiring local law enforcement to make a “reasonable attempt” to determine a stopped driver’s citizenship status or making it unlawful to conceal an undocumented immigrant argue that they are simply filling in gaps where the federal government has failed to enforce the law. States also argue that their laws are reflections of existing federal law—for example, their laws mirror ones such as 8 U.S.C. § 1324(a)(1), where it’s an offense to conceal or harbor an undocumented resident, or 8 U.S.C. § 1324A(a), which prohibits employers from knowingly hiring an undocumented immigrant.
On the other hand, opponents and the Justice Department argue that the federal government maintains the exclusive authority to determine a person’s immigration status and to regulate immigration. Under the Supremacy Clause, the Constitution and federal law preempt state law; Article I, Section 8 grants Congress the power to “to establish a uniform rule of naturalization … throughout the United States.” And the Supreme Court has held in various cases that only the federal government has the authority to regulate immigration.
Courts will soon have to decide whether these current state provisions are encroaching upon the federal government’s domain. And outside the court system, we desperately need comprehensive immigration reform to create a practical and fair way to address our over 12-million undocumented residents. Although comprehensive reform needs much more than enforcement mechanisms to fix the system (including policies that address labor/employment conditions, smuggling, tax payments, pathways to higher education, borders, or routes to residency/citizenship, to name a few), local enforcement has become a highly contested issue that is inconsistently applied from place to place. Thus, immigration reform will also need to address the extent of state and local involvement in enforcing federal immigration law.
Looking at what states are currently doing, local enforcement first appears to be expensive. As states start creating their own enforcement laws, a lot of litigation will emerge. It will be costly and time intensive to litigate different states’ laws to decide whether they have exceeded federal power. The laws themselves are also costly—when local law enforcement takes on the additional burden of immigration enforcement, it has less money and fewer resources for pressing law enforcement needs. In one Arizona county, debt increased by $1.3 million with three months of immigration enforcement. The laws can also undermine local law enforcement’s ability to protect our communities. Police may have lower clearance rates or higher response times with added responsibilities. Fear of law enforcement can cause non-citizens and citizens alike to stop reporting crimes to the police. And local enforcement can also decrease community cooperation or heighten racial tensions, creating a general environment of distrust.
States can also push constitutional limits with local enforcement. Before the injunction, HB 56’s education provision (which requires schools to inquire about a student’s legal status) kept many students away from school, and families experienced a greater obstacle to educational accessibility. The provision tests the Supreme Court’s ruling in Plyler v. Doe and subsequent decisions holding that undocumented immigrants have constitutional rights and protections. In Plyler, the Court struck down a Texas statue that allowed school districts to deny enrollment to undocumented immigrants, as it violated equal protection.
This doesn’t mean that state and local governments shouldn’t have any power over immigration enforcement. With 12 million out-of-status residents, perhaps the federal government can’t tackle immigration enforcement without states’ help and perhaps states are better equipped for this task. But if that is the case, legislators should actually look at the data to see what is happening at the community level, assess what types of local immigration participation truly work, and provide more guidelines to the states. It’s important that comprehensive immigration reform addresses this issue of state participation to promote sensible and fair immigration policies throughout the country.