Immigration reform: While Congress debates, Supreme Court stays clear

“These provisions are markedly different from the ones this court invalidated in [the Arizona case],” Alabama Solicitor General John Neiman wrote in his brief to the court.

Mr. Neiman said that rather than attempting to regulate the actions of the illegal immigrants themselves (an area of federal authority), the Alabama statute sought to regulate state residents engaged in unlawful activity that was related to illegal immigrants.

That distinction, Neiman said, differentiated the anti-harboring law from the portions of the Arizona statute struck down last year by the Supreme Court.

“The United States makes no attempt to justify equating laws that operate directly on aliens with those that operate on citizens,” the Alabama solicitor general wrote.

US Solicitor General Donald Verrilli urged the court to not take up the Alabama case. He said the Eleventh US Circuit Court of Appeals ruled correctly when it decided that the Alabama law was preempted by federal immigration law.

Mr. Verrilli quoted the Supreme Court’s decision in the Arizona case. “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” he wrote. “Whatever power a state may have [related to immigration] is subordinate to supreme national law.”

Washington has wide discretion in every area touching on immigration and immigration enforcement, he said.

“The federal government’s exclusive authority to regulate the terms and conditions of an alien’s entry, movement, and residence in the United States includes the authority to establish criminal sanctions against third parties who facilitate an alien’s violation of those terms and conditions and the authority to decide whether and how such criminal sanctions may be imposed,” the solicitor general said.

“Because Congress has occupied this entire field, even complimentary state regulation is impermissible,” Verrilli wrote. He said the Alabama statute “stands as an obstacle to the operation of federal law.”

Congress provided that state and local law enforcement officials have the authority to arrest individuals for violations of federal immigration law, but it is up to federal officials to decide when – or whether – to prosecute those who are arrested, according to the government’s brief.

Arizona and eight other states had asked the high court to take up Alabama’s appeal. They are Colorado, Florida, Georgia, Indiana, Kansas, Michigan, Oklahoma, and South Carolina.

The states’ friend of the court brief said the Eleventh Circuit went too far when it ruled that a state law with any connection to immigration is preempted unless specifically authorized by Congress.

“No interest is more fundamental or substantial than the States’ interests in protecting their residents from harm,” the friend of the court brief said.

“Some criminal organizations profit by providing the means for illegal entry or transport, or a safe harbor within the United States for unauthorized aliens,” the brief said. “Other organized crime groups and terrorists exploit immigrants who seek to come to or remain in the United States by forcing the immigrants to commit other crimes, such as drug running or prostitution.”

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