A Voice in the Wilderness In Defense of "Mere Conservatism"

The Plumb Line: Immigration (Part 1)

(Note: Read our Intro to the Plumb Line series here)

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Obama Sues Alabama:
Investigating the Background Behind the New Law and its Lawsuit

By: Caitlin Doemner

On August 1 2011, the U.S. Department of Justice sued the state of Alabama for its controversial new immigration law, which requires public schools to check students’ immigration status and criminalizes other immigrant-related activities.  Currently, children cannot be denied K – 12 educations regardless of their status as immigrants.  As a result of complaints that Hispanic families have begun pulling their children from school, the Justice Department has opened a civil rights investigation, requesting detailed enrollment data from Alabama schools. The state’s education department advised noncompliance, but recently expressed a willingness to cooperate.

Coming on the heels of a year and a half of litigation against other states’ immigration laws, the Department of Justice’s request highlights key issues in the immigration debate: the tenuous balance between state and federal authority on enforcing immigration legislation, and the matter of providing public benefits, like education, to illegal immigrants and their children.

What the Constitution Says

The crux of the Justice Department’s lawsuits against Arizona, Alabama, and most recently, South Carolina, hinges upon the U.S. Constitution’s division of powers. Unfortunately, the Constitution’s actual verbiage regarding immigration, or naturalization, is extremely limited. In Article 1, Section 8, it says: “The Congress shall have Power…. To establish an uniform Rule of Naturalization.”

Amendment 14, Section 1 primarily addresses the rights of citizens, with only the last two clauses addressing everyone at large: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis added).

Historical Relationship Between Feds and States

Based on these sections, establishing immigration policy has generally been viewed as the exclusive jurisdiction of the federal government, with state and local authorities given specified authority to enforce federal laws, especially criminal laws, but with limited power over civil infractions. For example, state and local law enforcement officers can arrest someone for the criminal offense of entering the country illegally, but cannot arrest someone solely for the lack of legal status because that is a civil violation.

The past decade, however, has seen increased cooperation between federal, state, and local law authorities regarding immigration enforcement.  After 2001, government opinion began to shift, with the Department of Justice stating in a press conference that enforcing immigration law, even civil provisions, is within the “inherent authority” of the states.

In 2008, the Bush Administration introduced one of the most expansive collaborations between feds and states—the Secure Communities program which relied on partnership between federal, state, and local law enforcement agencies, integrating databases and screening fingerprints of detainees for the purposes of building deportation capacity.

Recent Contentions

The tension between federal and state authority exploded onto the public stage in 2010 with the passage of Arizona Senate Bill 1070, which made it a misdemeanor for aliens to be in Arizona without carrying the documentation required by federal law.  In July 2010, the Justice Department sued Arizona on the grounds that it infringed upon the federal government’s Constitutionally-granted authority over immigration and foreign policy. A U.S. District judge blocked the implementation of certain provisions of the law and the U.S. 9th Circuit Court of Appeals upheld the ban, causing the Arizona governor to petition the Supreme Court to consider the case. Last May, the U.S. Supreme Court upheld Arizona’s “business death penalty”, which seems to indicate an inclination to side with the states on the matter of enforcement.  Claiming that the lower courts have already addressed the provisions targeting undocumented immigrants, the Justice Department’s has requested that the Supreme Court leave the case alone.

Although Arizona was the first to pass such legislation, it was certainly not the last, with South Carolina, Georgia, and Colorado following close behind. In August, the DOJ sued Alabama for the controversial law it passed in June 2011 -- HB 56, reportedly the toughest law passed thus far and largely upheld by a federal district judge in September 2011.

Education for Illegal Immigrants

One of the key issues brought up by the Alabama law is the requirement that primary and secondary schools provide education to all children, regardless of their immigration status – a policy instituted in Plyler v. Doe, 457 U.S. 202 (1982). In Plyler v. Doe, the Supreme Court determined that the Fourteenth Amendment (see above) applied to undocumented aliens; and although a state may withhold benefits from individuals who elect to enter our territory in violation of our laws, children are not situated to bear the consequences of their parents’ actions. While the Court recognized that “public education is not a "right" granted to individuals by the Constitution… neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.”

The matter becomes more subtle, however, after a student has graduated from high school.  Even before his “oops” flub, Governor Rick Perry had begun declining in the polls. One of the issues which became a target on his back was his passage of Texas HB 1403 in 2001. The bill, now Texas law 54.052, offers in-state tuition rates to all students who have resided in Texas for the three years leading up to their graduation from high school (or GED) and have provided an affidavit indicating an intent to apply for permanent resident status as soon as able to do so.

California’s brand new Dream Act (AB 131, 2011) offers more benefits to undocumented residents. Not only are students who meet the above qualifications entitled to in-state tuition breaks, they are now able to apply for and obtain the same kind of publicly-funded financial aid available to U.S. citizens and legal residents.

The controversial matter of provided state-funded benefits for illegal immigrants is just one of the topics receiving national attention as a result of Alabama’s new law and the corresponding lawsuit.

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Next week: Why Immigration is a Federal Issue and Immigrants Deserve Education