States in limbo on illegal immigration

The difference is, those four judges, in four courts, in four states, all invoked the principle that the federal government alone has the power to make immigration law, according to an Atlanta Journal-Constitution analysis.

That federal power includes not just writing the laws but determining how they will be enforced.

“The lower courts have been unanimous and emphatic in throwing out state enforcement schemes,” said Erwin Chemerinsky, a professor of constitutional and immigration law at the University of California at Irvine.

It could be years before the legal issues raised by opponents of the laws are finally sorted out. The rulings blocking full implementation will probably be appealed all the way to the U.S. Supreme Court — and that’s before any court actually rules on the laws’ constitutionality.

The final outcome is far from certain, even though, so far, all four district courts have taken the same action for the same reasons.

“You can never tell,” said Arizona State University law professor Paul Bender, who teaches constitutional and immigration law.

Bender characterized the current Supreme Court as more conservative than the lower courts, and perhaps more sympathetic to states’ desire for an expanded role.

However, Chief Justice John Roberts, one of the court’s more conservative members, generally gives great weight to federal claims on national security issues, noted Isabel Medina, a professor of immigration and constitutional law at Loyola University.

“I wouldn’t like to call it,” Medina said.

The highest hurdle Georgia must clear is a 1941 Supreme Court opinion that says states can’t take it upon themselves even to help the federal government carry out immigration laws. That case, Hines vs. Davidowitz, was cited in three of the four district court rulings, in Georgia, Arizona and Indiana. (The fourth judge, in Utah, cited no case law in his ruling.)

In it, the Supreme Court ruled that, in immigration matters, states have no power to “conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” The legal term is “pre-emption” — states can’t interject themselves because federal action has pre-empted them from doing so.

The justices’ reasoning, which goes back to the 1800s, is that immigration policy is inextricably linked to foreign policy. It would be disastrous, the court reasoned, for individual states to have separate dealings with foreign nations; it follows that individual states cannot make independent decisions about how to treat the citizens of foreign nations who are in the United States, even if they entered illegally.

“We cannot afford 50 different state policies on immigration, and I think most federal appellate courts would likely agree,” said Victor Romero, a professor of immigration law at Penn State University.

The fear, Bender said, is that a state or local officer could cause a “diplomatic incident” through their handling of a suspected illegal immigrant.

The key word when it comes to the contested sections of the recent laws passed by Georgia and other states is “complement.” Even if Georgia’s only aim is to help federal agents enforce federal laws, Georgia can do so only when federal officials ask for help and in the ways they specify.

Some metro Atlanta law enforcement agencies already do that, participating in the federal Secure Communities and 287(g) enforcement efforts.

The federal strategy is to concentrate on deporting violent criminals; if federal agents and prosecutors were diverted to deal with a flood of nonviolent immigrants apprehended by the states, that effort might well suffer, courts have ruled.

“States can’t force the federal government to spend resources on enforcement in ways the states determine,” said Chemerinsky.

The plaintiffs in the four state lawsuits also claimed the new laws would lead to violations of individuals’ rights under the Fourth Amendment, which prohibits illegal searches and seizures, and the Fourteenth Amendment, which guarantees equal protection under the law. Those concerns, especially the issue of racial profiling — which could affect U.S. citizens as well as immigrants — got lots of attention.

In each of the four recent cases, the judges pretty much sidestepped those issues.

One reason, constitutional experts said, is that those claims involve matters of fact: how state and local police would behave in enforcing the law. With no actual evidence to go on, the judges were reluctant to draw conclusions.

Besides, the judges didn’t have to go there; they had already found that the states were out of line because they were engaging in pre-emption.

In the Georgia case, District Judge Thomas Thrash also turned aside the plaintiffs’ challenge to a provision requiring employers to use the federal e-Verify system to determine that job applicants can legally work in the U.S.

That is line with a Supreme Court ruling in May that found a similar Arizona law constitutional on the grounds that the federal Immigration Reform and Control Act of 1986 specifically allows any state to impose conditions on the businesses it licenses — including a condition that they not knowingly hire illegal immigrants.

That raises a broader question, Medina said: If Congress can empower states to indirectly regulate immigration through business licensing, could it empower states to regulate immigration in ways now considered pre-emption, such as questioning and apprehending those suspected of having entered illegally?

“Most courts don’t get to this because they stop at pre-emption,” Medina said.

But even if the Constitution precludes Georgia and other states from asserting the authority to enforce immigration laws, the Supreme Court may have left room for Congress to give them that authority.

“There are really a lot of questions,” Medina said.