TOPICS > Politics

Alabama’s Immigration Law: Radical or Within Reason?

August 24, 2011 at 12:00 AM EDT
A federal judge in Alabama heard arguments Wednesday over whether to block the state's new controversial immigration law from going into effect on Sept. 1. Ray Suarez discusses the nation's toughest state measure on illegal immigration with the Southern Poverty Law Center's Mary Bauer and Kansas Secretary of State Kris Kobach.
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RAY SUAREZ: Now, a legal showdown over the nation’s toughest state measure to date targeting illegal immigration.

A federal judge in Alabama today heard arguments over whether to block the state’s new law from going into effect Sept. 1. The U.S. Department of Justice and a collection of civil rights groups have challenged the law on constitutional grounds.

The measure is similar to an Arizona law currently making its way through the courts, but Alabama goes further. It would authorize local law enforcement officers to arrest and detain anyone they suspect of being in the country illegally, penalize people who knowingly transport, harbor, or rent property to illegal immigrants, require public schools to confirm students’ legal status through birth certificates or sworn affidavits, and make it a felony to present false documents or information when applying for a job.

We get two views now, from Kansas Secretary of State Kris Kobach, a constitutional lawyer who helped write the Alabama law, and Mary Bauer, legal director for the Southern Poverty Law Center, one of the groups that filed a lawsuit against the state.

And, Ms. Bauer, the civil rights groups and the U.S. government went first today, so let me ask you, what was the main thrust of their argument before the district court judge?

MARY BAUER, Southern Poverty Law Center: Well, this law, as you said, is an extreme anti-immigrant law. It contains a wide variety of provisions, from the kind of controversial provisions that were widely discussed in Arizona, allowing the arrests and detention of people based only on the suspicion that they’re undocumented.

But it has a number of provisions that have not been tested in other courts, including the provisions you cited that make it illegal to contract with people, rent to people, that require schoolchildren to verify their immigration status, the immigration status of their parents.

These are really extreme provisions that are not likely to stand up to — sort of under our constitutional provisions, which are clearly designed to send a message to immigrants and to foreigners in Alabama that they’re not welcome.

The arguments today focused on kind of federal preemption notions, the idea that it’s the duty under constitutional system of the federal government to enforce immigration law, to write and craft immigration law, and to decide who to punish. Alabama simply doesn’t have the authority to create its own immigration scheme.

RAY SUAREZ: Kris Kobach, that’s been the objection in a lot of states that have tried legislation of this kind. How do you answer that argument?

KRIS KOBACH, Kansas secretary of state: Well, the Supreme Court has answered it for me. The Supreme Court of the United States has ruled on this issue of whether states can take steps to stop illegal immigration.

Let’s be clear. It’s about illegal immigration, not immigration generally. And the Supreme Court ruled once this past May, just a few months ago, and said that Arizona’s 2007 law to prevent employers from knowingly hiring unauthorized aliens, they upheld that law, ruled in favor of the state.

And prior to that, it was 1976 the last time the Supreme Court ruled on this issue. There, it was a California law. And the Supreme Court in that case, too, said the states do have the authority to take these steps to discourage illegal immigration.

The question in preemption, which is what this case is all about, to simplify it, is, does the state law conflict with any law that Congress has passed? And the interesting thing in this case is that the civil rights group, like those represented in this case, they can’t point to any act of Congress that says states aren’t supposed to do this.

On the contrary, Congress has time and again over the past 20 years or so, Congress has invited states to assist in helping to discourage and deter illegal immigration. That’s what Alabama’s doing. And I’m confident Alabama will prevail at the end of the day.

RAY SUAREZ: Secretary Kobach, a federal court in Arizona blocked parts of SB-1070, the law that their legislature passed, from taking effect.

KRIS KOBACH: Yes.

RAY SUAREZ: When you helped craft the Alabama law, did you take that into account and try to remove some of the things that judge objected to?

KRIS KOBACH: Actually, yes.

There was one provision of the Arizona law that had to do with when a police officer — if he’s making a traffic stop or investigating some crime, under what circumstances a police officer would ask if a person is unlawfully present, would develop reasonable suspicion and then ask the federal government. The federal government has a 24/7 hot line.

And the judge, the district judge in that case misunderstood how the — how and when that provision of the law would operate. And so we clarified that in the Alabama law. And then of course in the Alabama law, there are some additional provisions where Alabama really wanted to go as far as a state can permissibly go to discourage illegal immigration.

There’s plenty of things a state cannot do, but this bill goes to those things that a state can do.

RAY SUAREZ: Mary Bauer, in your opening comments, you made it quite clear that you objected to the thrust of the Alabama law, but isn’t the essence of the question at this point whether Alabama can move ahead with measures like this one, of barring children from schools, checking on whether you’re renting to people who are legally in the country, and so on?

MARY BAUER: I think that is the question.

And I think there is no doubt that the federal government stands with immigrants in Alabama in saying this is not something a state is permitted to do. And so when Mr. Kobach advises the state of Alabama that this law is permissible and advises them that the Department of Justice will not enter, he — he got it wrong.

Every court that has looked at the core provisions of a law like this has declared it unconstitutional. Every court that has looked at the detention provisions of this bill has said, this cannot stand. A state is not permitted to do this.

And we have every hope that the outcome will be the same in Alabama, with these incredibly extreme, radical provisions that have not been adopted in other places.

RAY SUAREZ: Secretary Kobach, how about that?

KRIS KOBACH: Well…

RAY SUAREZ: Haven’t the laws, similar laws in Utah, in Georgia and Indiana been blocked in their implementation?

KRIS KOBACH: The — yes, preliminary injunctions have been issued.

But let’s be clear. The standard for a preliminary injunction is very different. And that’s what’s being argued today in Alabama. The standard for when a judge decides, are we going to preliminarily put this law on ice until I finally decide the case, that’s different from a final decision.

And when you look at final judgments, laws like this — and I have helped cities, states and counties work on laws like this — do survive in court, like the example of the U.S. Supreme Court’s decision in May.

And I would caution that whether the U.S. Justice Department sues or not is not a fair indicator of whether something is correct. When I worked at the U.S. Justice Department under Attorney Gen. Ashcroft, we would never have dreamed of suing a state that was trying to assist the government in discouraging illegal immigration. Things have changed at the Obama Justice Department.

And they have brought these suits, which are totally unprecedented and indeed unnecessary. Groups like the SPLC and the ACLU had already launched this lawsuit, so it wasn’t necessary for the Justice Department to spend our taxpayer dollars suing Alabama.

So, the notion that this was about whether the Justice Department would sue is incorrect. The question is, does a state have the authority? And under the precedents of the United States, they do. My colleague opposite has made the claim that these are radical measures. Hardly.

In fact, in every one of the 50 states, police officers exercise this authority all the time. They pull someone over for speeding. The federal government has a 24/7 hot line. And if the police officer says, you know, this doesn’t look right, there’s 10 people crammed into a six-person car, they’re acting evasively, and I have reasonable suspicion something’s going on here, the federal government allows the officers to discretionarily say, hey, I’m going to make that call.

In Alabama, all they’re doing is standardizing the practice and saying…

RAY SUAREZ: Well, let me put that to Mary Bauer.

Is the secretary of state right that the federal government has already been using local law enforcement around the country to assist in detaining and eventually deporting illegal immigrants?

MARY BAUER: Sure, but not in this way, not in a way that allows states to arrest and detain people without real evidence based solely on what they look like, on some reasonable suspicion which is not defined that someone is undocumented, not under circumstances like this.

This law criminalizes the act of churches in transporting immigrants to church. This law creates civil — a civil cause of action for citizens who simply think that the sheriff is not doing an aggressive enough job in enforcing the law.

It contains provisions that are way beyond anything that has been — that had been passed anywhere else. And for a state like Alabama, with a tiny immigrant population, and which is desperately poor, it is really about political posturing. It’s not about any kind of policy that is needed to fix any kind of problem that exists in the state of Alabama.

It’s political posturing by legislators and by people like Mr. Kobach.

RAY SUAREZ: Mary Bauer, Kris Kobach, thank you both.

KRIS KOBACH: Thank you.