As with the Supreme Court’s recent opinion on Arizona SB 1070, initial media coverage portrayed the (technically) mixed rulings on the Alabama and Georgia immigration laws as a split decision. But do not be fooled: yesterday’s opinions from the U.S. Court of Appeals for the Eleventh Circuit represent a sweeping win for the immigrants’ rights movement and a crushing blow to the legal crusade led by Kris Kobach. While yesterday’s victory was not unqualified, the provisions struck down by the Eleventh Circuit were far more significant than those that were upheld.
As expected, the Eleventh Circuit struck down two sections of Alabama’s law that were virtually indistinguishable from provisions of Arizona SB 1070 that the Supreme Court found were preempted by federal law: one criminalizing the failure to carry immigration papers, the other criminalizing the solicitation or performance of work by immigration without employment authorization. Perhaps more importantly, the Eleventh Circuit also invalidated numerous provisions not at issue in the Arizona case—including sections making it a state crime in both Alabama and Georgia to harbor, transport, or induce undocumented immigrants to come the state. Yesterday’s rulings therefore confirm that states cannot add their own penalties to, or commence their own prosecutions for, violations of federal immigration laws.
The Eleventh Circuit also struck down a section of Alabama HB 56 preventing courts from enforcing most contracts entered into by undocumented immigrants. Calling the provision “extraordinary and unprecedented,” the court noted that an inability to form contracts would effectively prevent undocumented immigrants from living in Alabama, regardless of whether they might be granted relief from removal (e.g. asylum) in the future. The court thus found the provision to violate the Constitution itself, under which only the federal government may admit or deport immigrants from the country.
The most significant aspect of yesterday’s rulings, however, was the striking down of Section 28 of Alabama’s law, which required school officials to determine the immigration status of newly enrolling students. By finding the provision to violate the Supreme Court’s landmark decision in Plyler v. Doe, the Eleventh Circuit ensured that it could not be saved through modifications by Congress or the Alabama legislature. And with the school year about to begin, the ruling should prevent a repeat of 2011, when absentee rates for Latino children skyrocketed because undocumented parents feared sending even their children to school even if they were U.S. citizens.
To be sure, the Eleventh Circuit declined to strike down the “show me your papers” provision of Georgia’s and Alabama’s law, which authorize or require local police to contact federal immigration authorities if they possess “reasonable suspicion” that a person in their custody is undocumented. But by taking away officers’ ability to stop individuals for committing state immigration crimes in the first place, the ruling leaves local police with no more authority than they already possessed. And like the Supreme Court, the Eleventh Circuit effectively invited future lawsuits from individuals who are detained for unconstitutionally lengthy periods while their immigration status is being determined. Thus, every provision under consideration before the Eleventh Circuit was either struck down or left vulnerable to subsequent legal challenge.
Looking ahead, yesterday’s rulings may be appealed to the full Eleventh Circuit or the Supreme Court itself. But comments from Alabama Gov. Robert Bentley—who released a statement saying “it is time to move past court battles”—suggest the state is ready to wave the white flag. Given the outcome of Arizona SB 1070 at the Supreme Court, conceding defeat would be the wisest thing Alabama and Georgia could do.