After more than a year of watching Arizona battle the federal government in court over SB1070, lawmakers looking to mimic the landmark illegal immigration law in other states are trying to avoid the judicial pitfalls that have kept most of it off the books.
In 2011, legislatures in Alabama, Georgia, Indiana, South Carolina and Utah passed illegal immigration enforcement bills modeled on SB1070. All are facing lawsuits and the U.S. Supreme Court’s ruling on Arizona’s law will eventually determine whether any actually go into effect.
But some states sought to preempt the arguments that led U.S. District Court Judge Susan Bolton to enjoin key provisions in SB1070. Lawmakers in Indiana and Utah paid close attention to the ruling and modified their bills accordingly.
Utah Rep. Stephen Sandstrom said Bolton’s ruling led him to alter his original bill, which he introduced shortly after Arizona Gov. Jan Brewer signed SB1070. Sandstrom’s HB497 requires police officers to check the immigration status of anyone stopped on suspicion of a felony or Class A misdemeanor. But unlike SB1070, Sandstrom’s bill gives officers discretion when it comes to lower-level misdemeanors.
Critics of SB1070 said the law would invite racial profiling against Latinos by giving officers free reign to check the immigration status of anyone suspected of any crime. They contend the law would give officers incentives to fabricate minor charges against Hispanics in order to determine whether they are in the country illegally. Sandstrom said he exempted minor misdemeanors to avoid that possibility, though officers still have discretion in whether to check someone’s immigration status under those circumstances.
“You would be looking for someone that might look illegal, whatever that is, and target them for jaywalking or something,” Sandstrom said, referring to the concerns that civil rights groups and others had about the bill.
The Utah bill, HB497, also eliminated a provision that allowed residents to sue cities for failing to comply with the provision banning so-called “sanctuary city” policies. Sandstrom said he removed that provision from the original draft of his bill at the request of the Utah League of Cities and Towns. And he also removed an anti-loitering provision that restricted illegal immigrants’ ability to publicly solicit work, which was enjoined in SB1070.
In Indiana, lawmakers toned down SB590, which originally permitted officers to arrest a suspected illegal immigrant simply on probable cause that the suspect was an alien who had “willfully failed to register with the federal government.” Sen. Mike Delph, the bill’s sponsor, said he wanted to include a provision making it a crime for illegal immigrants to not carry legal documentation, just as SB1070 did, but omitted that portion from the bill because of concerns from lobbyists and others that it would not pass legal muster.
“We were advised … to steer clear of that,” Delph said. “There are political issues that result because of the potential legal issues in the background.”
Not everyone followed Indiana and Utah’s leads, said Mike Hethmon, an attorney with the Immigration Reform Law Institute, an anti-illegal immigration group based in Washington, D.C.
Alabama’s HB56 is probably the most far-reaching immigration omnibus bill passed in the United States, Hethmon said, and includes several provisions that SB1070 sponsor Sen. Russell Pearce and other Arizona lawmakers tried unsuccessfully to pass in 2011, such as a section requiring the state to track the number of illegal immigrants enrolled in its K-12 schools.
“My instinct as an attorney was to say, let’s see what Judge Bolton said and see if we can tinker with the language or adapt the language to meet her technical objections while preserving the approach overall. And really, that is not the approach that we’ve seen happen,” Hethmon said.
Rep. Micky Hammon, the sponsor of Alabama’s HB56, said he tried to use Bolton’s ruling as a partial guide, and had assistance from Kansas Secretary of State Kris Kobach, the immigration attorney who helped Pearce write SB1070. But Alabama lawmakers decided to go further than their counterparts in Arizona and are hoping to set a precedent that other states can use to do the same thing.
“There has to be a first court case on all these ideas that we have at some point in time,” Hammon said.
Kobach said he believes Bolton erred when she ruled against the section in SB1070 that requires police officers to check the immigration status of people they stop. He said she incorrectly assumed that all suspects’ immigration status would be checked when they are booked into jail.
Nonetheless, Kobach said he advised lawmakers in Alabama and other states to include separate provisions — one for people who are booked into jail and another for people who are stopped by police.
“She failed to distinguish clearly between a traffic stop or short-duration detention like that and an arrest where a person is booked into custody,” Kobach said.
But one area where there is no way to sidestep Bolton’s ruling is in provisions that effectively make it a state crime to be in the U.S. illegally, which Arizona and other states achieved through statutes making it a state crime for an illegal immigration to not carry their immigration documents. The state laws mirror federal statutes, but Bolton ruled that they are preempted by federal law.
Kobach said there’s really no way around Bolton’s ruling. But the statutes are at the heart of states’ efforts to fight illegal immigration and he’s hoping the U.S. Supreme Court eventually rules in their favor.
“That section is worded exactly as it should be,” Kobach said.
Kobach raised the possibility that the U.S. Supreme Court might not agree to hear Arizona’s appeal of the SB1070 injunction. The high court only hears about 2 percent of the appeals it receives, and it would be unusual for the court to hear an immigration preemption case so soon after ruling in favor of Arizona’s Legal Arizona Workers Act.
The Supreme Court ruled in June that states can deny licenses to businesses that hire illegal immigrants and force them to use the federal E-Verify system, and other states are already following suit. Delph included an E-Verify provision in the Indiana bill.
But Kobach said the increasing number of states that are passing SB1070-style laws of their own makes it more likely that the Supreme Court will accept the case. And if it doesn’t, Kobach said he expects other appellate courts to rule differently than the
9th Circuit, which conservatives decry as the most liberal in the country, and the conflicting circuit court rulings would make the issue ripe for the Supreme Court.
“It’s clear that the Supreme Court is going to have to return to this issue at some point in the future,” Kobach said.
Only five states have followed in Arizona’s footsteps in passing omnibus immigration enforcement bills similar to SB1070, but many others have tried. According to the National Conference of State Legislatures, at least 52 bills have been introduced in 30 states in 2011.