Can the Obama administration stop Alabama's immigration law?

The Obama administration asked an appeals court Friday to immediately stop implementation of the immigration law, after reports that Hispanic students were staying home as the law took effect.

Dave Martin/AP
Mothers arrive to pick up their children from Flowers School in Montgomery, Ala., Friday. Hispanic students have started vanishing from Alabama public schools in the wake of a court ruling that upheld the state's tough new law cracking down on illegal immigration. In Montgomery County, more than 200 Hispanic students were absent the morning after the judge's Wednesday ruling.

The impact of Alabama's immigration law on schoolchildren is a key factor in why the Obama administration asked an appeals court on Friday to immediately stop implementation of the law, which began this week.

The Alabama legislation is considered by many to be America's toughest immigration law. Among other things, it requires that school officials determine the immigration status of students when they enroll. The checks aren't meant to identify children, state school officials say, but will instead be used for statistical analysis about the costs of illegal immigration in the state.

In a challenge filed in the 11th Circuit Court of Appeals in Atlanta, the US Justice Department alleged that Alabama's law "is highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings."

News reports have described frightened Hispanic immigrants leaving the state. And many are drawing up powers of attorney to establish guardianship for their US-born children, should they be identified as illegal immigrants by Alabama authorities.

On Monday, as the law took effect, more than 2,000 Hispanic children were absent from school. But that number dwindled to about 1,500 midweek.

Last week, federal judge Sharon Lovelace Blackburn had cleared the way for the law's toughest rules to take effect. Now, the Obama administration's challenge is likely to force the courts to further clarify the extent to which state immigration laws can impact citizens – as well as the ability of the federal government to regulate immigration if state laws cause immigrants to "self-deport" to other states.

"I don't know of another situation quite like this one, partly because it doesn't seem to have been at all thought out as far as [the consequences of the law]," says Deborah Denno, a law professor at Fordham University in New York. "The fact that it's unclear where a lot of these children are is a statement in and of itself that children's lives are being affected, including their education."

Despite Judge Blackburn's view that the Alabama law, for the most part, is copacetic with existing federal law, the Justice Department's appeal said parts of the state law run counter to federal immigration rules. For one thing, the appeal said, "attempts to drive aliens 'off the grid' will only impede the removal process established by federal law."

Alabama legislators agree that pushing illegal immigrants out of the state is the core purpose of the law.

“Granted, we need to have a sound immigration policy that allows people into our country who are going to produce more than they are going to consume. But the bottom line is illegal aliens consume far more of our tax resources than they generate,” US Rep. Mo Brooks (R) of Alabama told Politico. "With respect to illegal aliens who are now leaving jobs in Alabama, that’s exactly what we want."

One issue that the 11th Circuit may ponder is the 1982 US Supreme Court decision that made it illegal for schools to shut out students because of their immigration status. In the majority opinion, Justice William Brennan wrote, "It is difficult to understand precisely what the state hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within society."

In the dissent, Chief Justice Warren Burger wrote, "The Constitution does not ... vest in the Court the authority to strike down laws because they do not meet our standards for desirable social policy, 'wisdom' or 'common sense.' "

The Alabama law targets legal citizens, Hispanic activists point out, because it affects family groups of "mixed documentation" – where some people have legal papers and some do not. Thus, the interests of the entire group veer toward the plight of undocumented family members. Activists describe a "culture of fear" running through Alabama's Hispanic community. "Even here in Alabama, we are all reeling from the impact that this [law] had had in the few days since it's been in effect," said Sam Brooke, a staff attorney for the Southern Poverty Law Center in Montgomery, Ala. Mr. Brooke spoke during a conference call with reporters Wednesday.

Aside from its impact on schoolchildren, the law should be blocked because it could have repercussions for other states and diplomatic consequences for the country as a whole, the Justice Department said in its plea to the 11th Circuit. The 219-page filing asked for an immediate, "expedited review" of the case, citing the news reports of immigrants leaving the state – what Justice Department lawyers called an "intended but impermissible consequence" of the Alabama law.

"Neither the Constitution nor the federal immigration laws permit a state scheme avowedly designed to drive aliens out of the State – a program of de facto removal and a blunt instrument that can only impede federal law enforcement, obstruct the overall national regulation of immigration and present new concerns for the states to which aliens 'deport themselves,' " the challenge read.

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