Federal Courts Resurrect State Immigration-Law Cases
Alabama
Governor Robert Bentley announced the State has asked the full 11th U.S. Circuit Court of Appeals to reconsider parts of two opinions issued by the Court’s three-judge panel on Alabama’s immigration law. In the wake of Arizona, the panel invalidated provisions of the law that create penalties for harboring and transporting illegal aliens, and that block state courts from enforcing contracts involving illegal aliens. Alabama asserts that an earlier lower court ruling correctly upheld the provisions.
The State’s request said “(The panel) put the law of this circuit at odds with the law in other jurisdictions, and they expand doctrine of implied pre-emption in ways that will be detrimental in other areas of the law.” Arizona, which determined whether certain SB 1070 provisions were preempted under federal law, was silent on the harboring and contract issues.
In a press release Bentley said, “As the Governor of Alabama, I have a duty to uphold and defend Alabama law. Federal courts should not restrain state governments in a way that is contrary to the U.S. Constitution. We must protect the State of Alabama from the federal government interfering with our ability to enforce our laws…We owe it to the people of this state to defend the U.S. Constitution and the right of our legislature to make constitutional policy choices.”
Indiana
In July federal District Court Judge Susan Barker was evaluating re-opening cases concerning the Indiana enforcement law, which she blocked in 2011, when Attorney General Greg Zoeller weighed in. Zoeller recommended that Judge Barker strike down three of the four warrantless arrest provisions of Indiana’s law.
Zoeller claimed that, after Arizona, he could not defend the constitutionality of provisions that allow police to make warrantless arrests for immigration court removal orders, federal notice-of-action forms, or foreign-born aggravated felons. The exception, he said, is a provision that allows police to confine illegal aliens on a detainer for 48 hours at a federal agency’s request.
“We vigorously defended (the law) in federal court,” Zoeller said. “Now that the U.S. Supreme Court has ruled that warrantless arrest provisions of such laws are unconstitutional, we had a duty to notify the federal court while continuing to defend the portions of the law that are defensible.”
Zoeller’s decision not to defend provisions of the law was controversial, in part because he is a signatory to the pro-illegal alien Indiana Compact. Enforcement advocates have argued that his leanings have colored his decision to capitulate without a fight. Now, three Indiana state senators -- Mike Delph, Brent Steele and Phil Boots – are asking Judge Barker to allow them to defend the parts of the law the attorney general won't.
The senators submitted a brief to Barker that claims Zoeller effectively nullified their votes when he opted not to defend sections of the law. It also argues that the warrantless arrest provisions in Indiana and Arizona are "vastly different." Indiana law allows such arrests only in three specific situations that require input from the federal government, unlike the broader powers granted police by the Arizona law. Therefore, the brief argues, Indiana's law should be consistent with Arizona.
Georgia
The state of Georgia is asking the full 11th U.S. Circuit Court of Appeals to reconsider an opinion by the Court’s three-judge panel on the state's immigration enforcement law. The panel affirmed a lower court injunction on implementation of a provision that creates penalties for knowingly harboring or transporting illegal aliens during the commission of a crime.
The state says the panel's decision goes against certain 11th Circuit and U.S. Supreme Court decisions. The state's petition argues that the panel’s ruling “threatens to undermine the cooperative federalism found throughout state and federal criminal law, as well as thousands of criminal convictions for violations of state laws that mirror federal laws.”
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