What is wrong with Alabama HB 56?
HB 56 rolls back the clock on civil rights and equality in Alabama. It effectively turns Alabama into a police state, and invites rampant discrimination against all Alabamians who look or sound "foreign." It seeks to regulate every aspect of the lives of Alabamians, from blocking the schoolhouse doors to children, to interfering with people's ability to rent housing or earn a living, to criminalizing routine daily activities and transactions among people in the state.
Like the Arizona "show me your papers" law that inspired it, this law compels all people in the state of Alabama, citizens and non-citizens alike, to carry identification documents on them at all times, because anyone may be stopped by a police officer and required to prove their citizenship or immigration status. The law requires police to demand the identification and documents of anyone they stop who they have "reasonable suspicion" to believe is in the country unlawfully. It also subjects Alabamians, including those who have permission from the federal government to remain in the United States, to unlawful interrogations, searches, and warrantless arrests. These tactics are more commonly associated with a police state, not a free country.
Moreover, the law results in systematic racial profiling. Because HB 56 requires interrogations and prolonged detention based on "reasonable suspicion" of being an undocumented immigrant, even well-intentioned police officers will be put in the position of relying on stereotypes and characteristics such as race, ethnicity, or accent in deciding whom to stop and investigate.
Alone among all states that have enacted anti-immigrant laws in recent years, Alabama's HB 56 attempts to block public schoolhouse doors to immigrant families. It requires public schools to determine the citizenship or immigration status of kindergarteners and grade school children, and, in many cases, the status of their parents as well. It authorizes school officials to then report children or parents whom they presume to be in the country unlawfully to the U.S. Department of Homeland Security. This will impact even U.S. citizen children. The stated aim of the proponents of HB 56 is to deter families from enrolling their children in public schools for fear that they or one of their parents could be subject to deportation. These requirements fly in the face of recently issued federal guidance issued jointly by the U.S. Department of Justice and Department of Education warning that such practices impinge on the constitutional rights of all children to attend public school regardless of their immigration status. The Alabama law also seeks to block access to public colleges and universities by high-achieving young people who lack U.S. citizenship or a green card; in doing so, it excludes a number of noncitizens who are present in the United States lawfully, including people fleeing persecution from their home countries or entering the United States as refugees, among others.
The law also creates new state crimes that allow Alabama police and prosecutors to punish individuals for routine interactions with undocumented immigrants. HB 56 puts individuals in jeopardy of prosecution for giving a lift to a neighbor, inviting a family member to visit from out of state, or renting a room to a friend if state authorities decide that they knew or "recklessly disregarded" that the other person was "unlawfully present in the United States." These new crimes would turn many family members of undocumented persons, immigration lawyers, good Samaritans, and good neighbors into criminals simply for behaving decently towards their fellow human beings.
This is not even an exhaustive list of HB 56's constitutional defects. In enacting this law, Alabama's politicians have sacrificed cherished civil liberties and undermined fundamental American values of fairness and equality for all people.
What is the ACLU doing about the law?
The ACLU, National Immigration Law Center (NILC), Southern Poverty Law Center, Asian Law Caucus, Asian American Justice Center and other civil rights attorneys have filed a class action lawsuit in federal court on behalf of a broad array of individuals and organizations to stop HB 56 from taking effect. The lawsuit charges that the law violates numerous provisions of the U.S. Constitution and federal civil rights laws. Notably, by unlawfully inviting the racial profiling of Latinos, Asian Americans and others who might be profiled as foreigners, the law violates the Fourteenth Amendment's guarantee of equal protection under the law. By interfering with the federal government's authority to regulate immigration, it also violates the Supremacy Clause of the Constitution.
This bill was signed into law on June 9, 2011 by Alabama Governor Robert Bentley. Almost all of its provisions are scheduled to go into effect on September 1, 2011.
How does the law cause racial profiling?
By requiring police officers to investigate the citizenship or immigration status of anyone they stop, even for minor traffic and other low-level criminal offenses such as jaywalking, if they suspect the individual may be in the country unlawfully, the law invites police officers to rely on racial and ethnic stereotypes about who "looks like" an unauthorized immigrant.
Like the Arizona law that inspired it, this law invites racial profiling at two points in an encounter with the police. First, under HB 56, an officer may find a pretextual reason to stop someone on a very minor infraction based on the way they look, and then demand to see their papers. Or an officer may stop a person for a lawful reason but then, based on appearance or accent, demand their papers. Either way, racial profiling undermines fundamental American values of fairness and equality for all people. Americans come from every background and every corner of the earth, and no one should be subject to discriminatory or unequal treatment by the police based only on their race, ethnicity, or national origin.
Recent studies have shown that when local law enforcement agencies attempt to enforce immigration laws, it leads to racial profiling of Latinos and distorted criminal justice priorities focused on low-level, non-violent offenders. These types of policies lead to dragnets of Latino neighborhoods, discriminatory traffic checkpoints, and targeting of immigrant populations, all in an effort to detain people who look or sound foreign-born so that their status can be checked. HB 56 contains a token prohibition on racial profiling, but this language, which is copied from Arizona's unconstitutional law, is designed to pay lip service to community concerns about racial profiling but will do nothing to prevent it. The operative language of HB 56 requires officers to suspect people of being undocumented immigrants. Other than based on appearance and language, it's hard to imagine any way a police officer in the state of Alabama (which has no international borders) could suspect that someone is not in the country legally. Relying on a person's appearance is not constitutional.
What's wrong with having Alabama police work on immigration enforcement?
Law enforcement leaders, including police chiefs around the country, have cautioned against putting local police in the position of enforcing federal immigration laws for fear that this will alienate the communities they serve and endanger everyone's public safety. The Alabama law undermines public safety and makes everyone less safe by diminishing the trust of immigrants, Latinos, and others who will be presumed to be "foreign" by local law enforcement agencies. Many immigrants will not come forward with vital information about crimes for fear that they or their family members will be subject to detention and investigation. Everyone's safety, including U.S. citizens, is put in jeopardy when victims and witnesses don't feel safe to come forward with critical information about crimes committed against them, their families, or members of the larger community. Police depend on the cooperation and trust of these communities to ensure public safety.
What is "reasonable suspicion" that someone is in the country unlawfully?
No legislator or state official has come up with a good explanation for what "reasonable suspicion" means in the context of this law, in Arizona or anywhere else such an unworkable standard has been proposed. How can an officer on the street determine that someone is unauthorized to be in the United States just by observing them? Local law enforcement agencies have complained that are not trained to enforce such a policy. More generally, outside the context of HB 56, "reasonable suspicion" is a legal term describing the circumstances under which an officer can prevent someone from walking or driving away. It's more than just a hunch and requires an officer to rely on objective facts that lead him or her to believe a crime has been or is being committed.
How does this law conflict with federal law in the same way that Arizona's SB 1070 does?
Alabama's requirement that state and local police officers demand the identity documents of people they stop whom they suspect are in the country unlawfully, along with the unbridled discretion to detain people in order to verify their citizenship or immigration status, go well beyond what is permitted or even contemplated by federal immigration law.
First, HB 56 invites racial profiling of Latinos, Asian Americans, and others presumed to be foreign-born, in violation of federal civil rights protections. Federal law recognizes that racial profiling undermines fundamental American values of fairness and equality for all people.
Alabama's HB 56 also oversteps the limits of a state's authority to engage in the enforcement of civil immigration laws, in violation of the Constitution's Supremacy Clause and numerous other constitutional provisions. States are not constitutionally permitted to create their own mandates on state and local police for the enforcement of federal immigration laws outside the authorization and supervision of the federal government. If Alabama and other states were permitted to do so, there would be a patchwork of fifty different immigration enforcement systems in this country, seriously undermining the authority and ability of the federal government to regulate and enforce the nation's immigration laws.
By imposing its own immigration enforcement obligations on state and local police officers, Alabama is essentially turning its officers into state-directed immigration agents. Indeed, the Alabama law even seeks to create its own immigration police force. This interferes with the federal government's authority to establish its own priorities and strategies to protect national security, ensure public safety, and enforce the immigration laws.
HB 56 also departs from federal law by requiring state and local police officers to detain people for an undefined period based on presumptions about their civil immigration status, in clear violation of the Fourth Amendment's protection against unlawful searches and seizures and due process guarantees of the Constitution. Even federal immigration agents do not have such broad authority to detain or arrest people without a warrant, away from the border or international points of entry, under federal law. See 8 U.S.C. § 1357 (a)(2). The Alabama law impermissibly seeks to expand the limited circumstances in which federal law expressly allows state and local officers to arrest immigrants. See 8 U.S.C. § 1252c.
HB 56 creates its own criminal penalties for noncitizens failing to register with the government or failing to carry registration documents, in conflict with the federal government's own laws and oversight over registration of immigrants. This provision directly violates longstanding U.S. Supreme Court precedent holding that states cannot establish their own systems for registration of noncitizens.
HB 56 also imposes a criminal penalty on undocumented immigrants who solicit or perform work in the state of Alabama, again in direct conflict with federal law that expressly prohibits states and localities from enacting their own laws regarding employment authorization.
For these and other reasons, the federal district court blocked similar provisions in Arizona's law, SB 1070 — upon which Alabama modeled HB 56 — from taking effect. The federal court of appeals has affirmed that decision. Similarly unconstitutional provisions of copycat laws inspired by Arizona's SB 1070 have already been blocked from taking effect by federal courts in three other states — Utah, Indiana, and Georgia — this year. To date, no federal court has allowed such provisions to go into effect anywhere in the country.
How does this law go beyond even what Arizona tried to do with SB 1070?
In addition to the familiar provisions described above, Alabama's HB 56 goes beyond even Arizona's notorious law in several key respects. A stark reminder of the Jim Crow era that Alabama has struggled to overcome, the provisions of HB 56 aim to restrict and regulate every aspects of people's lives, from schooling to housing to marriage.
Most notably, Alabama's law seeks to deter the enrollment of children in public schools, starting with kindergarten and through grade school, if they or their parents cannot prove their citizenship or immigration status. The law does this by intimidating children — even U.S. citizen children — and parents with the threat of reporting their families to federal immigration authorities if they cannot produce sufficient documentation of their citizenship or immigration status. No other state in the country has attacked the right of children to a public education in such a brazen way. This policy flies in the face of recently issued guidance from the U.S. Department of Justice and Department of Education that explains how such practices impinge on the constitutional rights of schoolchildren as guaranteed under the 14th Amendment's Equal Protection Clause.
The Alabama law also seeks to take a housing discrimination policy that has failed to withstand constitutional scrutiny at the local level and incorporate it into a state law for the first time. Specifically, HB 56 aims to prohibit landlords from renting housing to people who are presumed to be undocumented. The immigrant rental housing ban has been attempted by several cities and towns across the country. As populations have grown more diverse, these rental bans are designed to drive immigrants out of town. Not only do such policies invite housing discrimination against anyone who looks or sounds foreign, but they are also constitutionally preempted by the federal government's exclusive authority to regulate and enforce immigration laws. These types of provisions have been challenged in cities across the country — including Hazleton, Pennsylvania; Farmers Branch, Texas; and Escondido, California, among others. Federal courts have blocked all of them from taking effect.
Even beyond rental agreements, Alabama's law seeks to criminalize a number of daily interactions and transactions with undocumented immigrants. The law prohibits state courts from recognizing a host of different contracts and agreements entered into with undocumented immigrants — ranging from family custody agreements, to contracts for the provision of childcare and the purchase of medicines, to mortgage and loan agreements. The transactions targeted by Alabama's law extend beyond private arrangements to include routine interactions with government agencies. The law criminalizes things such as applying for a fishing license or paying a state park entrance fee while undocumented. The ban on various contracts and transactions in Alabama's law is also unprecedented among the various state anti-immigrant laws, and is likely to be found unconstitutional.
Isn't it already a crime not to carry papers?
While there are federal laws requiring certain non-citizens to carry papers issued to them by the federal government, the federal provisions cited in this bill do not require what Alabama is compelling in its law. Trained federal immigration officials review immigration documents in specific circumstances when they encounter individuals who they know are not citizens. They don't just approach people who look like they could be immigrants and ask them to produce their papers. Similarly, for many good reasons, federal law does not require officers on the street who are not even adequately trained on the complexities of federal immigration law to ask people they stop to show their papers.
Is being in the country illegally a crime? Don't we expect police officers to stop crime?
Federal immigration policy is very complicated, carrying both civil and criminal penalties. Congress has chosen not to make it a crime simply to be in the United States without authorization. This is a sensible choice as immigration status is complex and can change over time; criminalizing a tourist for staying past the expiration of a visa, for example, would waste government resources. Nothing prevents police from investigating real criminal conduct and activity within the limits of our Constitution. This Alabama law is un-American because it goes beyond that and undermines our values of fairness and equality for all people. It would transform Alabama into a police state where all Latino and Asian American residents, and others who look or sound foreign, are treated like potential criminal suspects.
What is the impact of the U.S. Supreme Court's decision in Chamber of Commerce v. Whiting, which upheld Arizona's 2007 law mandating employers to enroll in E-Verify, on the constitutionality of HB 56?
The Supreme Court's ruling in the Whiting case is limited to a narrow question about whether Arizona's employment sanctions law, the Legal Arizona Workers Act, fits within an express savings clause carved out by Congress in a federal statute that limits the ability of states to impose sanctions on employers for hiring unauthorized workers.[1] The Whiting decision has nothing to do with the ability of a state to enact its own immigration enforcement and regulation scheme, as Arizona and a handful of other states, including Alabama with HB 56, have sought to do. To the contrary, the Court recognized in Whiting that only the federal government has the power to regulate immigration. The savings clause at issue in Whiting concerns only the power of States to regulate the licensing of employers, not immigration.
While there are some provisions in HB 56 that concern the ability of the state through its licensing powers to mandate that private employers participate in the flawed federal work authorization program, commonly known as E-Verify, to verify the status of new hires (Sections 9, 15, and 26 of HB 56), these provisions are not the subject of the lawsuit brought by the ACLU and other organizations.
The lawsuit challenging HB 56 is about whether the state of Alabama can enact its own pervasive and comprehensive law to regulate immigration that discriminates against people based on how they look or sound. The answer is no. Just like Arizona's SB 1070, Alabama's law violates core civil rights and liberties secured by the U.S. Constitution. The Arizona law and its imitators in Utah, Indiana, and Georgia have been blocked by the federal courts and the Alabama law should be blocked for the same reasons.
1. The federal Immigration Reform and Control Act (IRCA) expressly preempts States from imposing "civil or criminal sanctions" on those who employ unauthorized immigrant workers, "other than through licensing and similar laws." 8 U.S.C. §1324a(h)(2) (emphasis added). The Whiting decision turned on the plain meaning of this seven-word savings clause. The majority found that Arizona's law was not preempted because the ability to revoke business licenses specifically fell within the powers that Congress expressly chose to leave to the States through the statute's savings clause. 563 U.S. ___ (2011).
