A federal appeals court in Atlanta announced Thursday that it would wait until after the U.S. Supreme Court rules on Arizona’s anti-illegal immigration law before it acts on similar statutes in Georgia and Alabama, keeping parts of those measures on hold for months to come.
Judge Charles Wilson of the 11th U.S. Circuit Court of Appeals made the announcement at the start of a three-hour hearing on parts of Georgia's and Alabama’s laws.
The Supreme Court is expected to take up Arizona’s law next month and rule by the end of June. A lower court put two key parts of Georgia’s law on hold in June following a legal challenge brought by the American Civil Liberties Union and other civil and immigrant rights groups. Georgia is appealing that lower court’s decision to Wilson’s panel.
At issue in the courts is how far states can legally go in combating illegal immigration. Officials in Georgia, Alabama, Arizona, South Carolina and Utah have enacted similar anti-illegal immigration laws in recent years, saying they must act to protect jobs and taxpayer-funded resources because the federal government has failed to seal the nation’s borders.
Opponents of these measures say they are divisive and unconstitutional and complain they are tearing families apart, driving migrant workers away and damaging states’ economies.
As dozens of people loudly protested against the Georgia and Alabama laws outside the downtown courtroom, Wilson said his three-judge panel agreed to wait until the higher court rules because some of the issues are similar in their cases.
“The panel has conferred preliminarily, and we have agreed not to issue any opinions in this case until the Supreme Court has decided the Arizona case,” Wilson said Thursday, “since I believe that some of these provisions of both the Georgia law and the Alabama law are very similar to the provisions in Arizona.”
Wilson and the other two judges then proceeded to ask probing questions of the attorneys representing Georgia and Alabama, including whether their measures interfere with the federal government’s authority to regulate immigration and manage foreign relations.
Wilson singled out a provision in Georgia’s law that would authorize state and local police to investigate the immigration status of certain suspects and detain those who are determined to be in the country illegally and take them to jail.
The judge asked what would happen if all 50 states adopted statutes similar to Georgia’s. Specifically, he asked how that would affect federal immigration officials who are required to respond to queries from local police about the legal status of suspects.
“I wonder what the increased burden would be on the Department of Homeland Security to respond to all these data-gathering requests?” he asked. “You would have to create an entirely new bureaucracy, wouldn’t you, just to respond to these requests?”
Devon Orland, a senior assistant attorney general for the state, pointed out that Georgia’s law makes it optional for police to do immigration status checks. She also denied the measure is pre-empted by federal law.
“What the plaintiffs are talking about is -- their definition of harm is they are more likely to get caught,” she said. “More likely to be caught is not sufficient for standing, it is not sufficient for harm, and it is not sufficient to show pre-emption.”
The judges then turned to parts of Alabama’s law, including a provision that would require public school officials to determine the immigration status of their students. The Obama administration is suing to block that law. And in October, the appeals court temporarily put that provision on hold.
Judge Beverly Martin expressed concerns about how information about students’ immigration status could be used. She pointed out that Alabama must turn over such information to federal authorities if they ask for it, potentially making it possible for students to be deported. The Supreme Court has ruled that school districts must educate all children regardless of their legal status.
“Once they declare themselves, doesn’t that interfere with their constitutional right to a basic public education, which has been declared by the Supreme Court, as you know?” she asked.
Moments later, Wilson asked whether the law is a “scare tactic.”
Alabama officials denied that and said the law would not deny students their constitutional rights. Prim Escalona, a deputy solicitor general for Alabama, said federal officials are the ones who determine who is deported. She added collecting information about the immigration status of students could help Alabama officials make school spending and policy decisions.
“Perhaps they collect this data and the numbers are low and it informs the public debate and they say, ‘Well, maybe we don’t need certain laws or maybe we do need certain policies,’ ” Escalona said.
Near the end of Thursday’s hearing, Cecillia Wang, director of the ACLU Immigrants’ Rights Project, pressed the court to not wait and instead issue an injunction against several parts of Alabama’s law -- also called House Bill 56 -- that have not been put on hold. Among those provisions is one that would require police to investigate the immigration status of certain suspects.
Wang said some of the plaintiffs in the case are seeking legal status in the United States and would be “subject to police inquisition if they should be stopped for a traffic violation. They are subject to detention, arrest and indeed criminal prosecution.”
“The plaintiffs that we represent in this case are suffering an ongoing harm because of HB 56 and these particular provisions,” she said.
Georgia Attorney General Sam Olens, who sat by Orland at the hearing, said it makes sense for the appeals court to hold off on acting on Georgia’s law until the Supreme Court rules on Arizona’s statute since similar issues are at play in both cases. He defended Georgia’s law in an interview during a break in the proceedings.
“The states,” he said, “would not be passing these laws if the federal government did its job.”
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