One of the most remarkable things to come out of Washington this
week had nothing to do with debt. It was about immigration. The Obama
Administration on Monday filed a legal challenge to Alabama’s new
immigration law, further animating the longstanding tension between
federal supremacy and states’ rights. But it is especially noteworthy,
given that Alabama is among the states, many of them Southern, that in
recent months have enacted some of the nation’s most restrictive
immigration policies.
Beginning on Sept. 1, Alabama will require local law enforcement
authorities to check the citizenship status of people who appear to be
illegal immigrants, a policy critics predict will open the door to
racial and ethnic profiling lawsuits. It also will criminalize the act
of providing transportation or housing to undocumented immigrants.
Public school officials will be required to ask students to produce
birth certificates to prove U.S. citizenship, or whether they are the
child of illegal residents. Parents can be asked to sign a declaration
of legal residency and schools must report those findings to Alabama’s
board of education. The law’s chief architect, Micky Hammon, a
Republican legislator, dismissed the Obama Administration’s suit on
Monday, telling reporters: “They want to block our efforts to secure
Alabama’s borders and prevent our jobs and taxpayers from disappearing
into the abyss that illegal immigration causes.”
The Administration’s Alabama lawsuit comes weeks after it filed a
legal challenge to Arizona’s new immigration policy. The federal actions
matter for several key reasons. First, they are examples of how the
Administration is using its prosecutorial discretion in the politically
thorny matter of immigration policy. Especially given Congressional
reluctance to modernize federal immigration law and deal with the
country’s estimated 11 million undocumented immigrants. Beyond
challenging Alabama and Arizona’s policies, the Administration is
expanding deportation programs targeting illegal immigrants convicted of
crimes in their home countries or the U.S. This has resulted in the
deportation of some 1 million undocumented immigrants since President
Obama took office – more than during his predecessor’s entire second
term.
The Administration’s legal objection in Alabama is predicated on
federal supremacy – that is, the Constitution empowers Congress to set
laws that supercede all others. The suit argues that the Fourteenth
Amendment makes clear the federal government has the exclusive authority
to determine both who is a citizen, and to regulate the movement of
foreign nationals within U.S. borders. It’s unclear whether the Alabama
law’s education provision violates the U.S. Supreme Court’s 1982 Plyler
v. Doe decision, which held that under the Fourteenth Amendment,
undocumented immigrant children are entitled to a public education.
Alabama’s governor, Robert Bentley, a Republican, enthusiastically
signed the new policy into law in June. Georgia and South Carolina have
passed similar, albeit less restrictive, measures. But the issue of
states’ rights is tricky, considering the terrain. The South’s support
of states’ rights – particularly on slavery’s abolition – was a key
cause of the Civil War. In the early 1960s, Alabama Governor George
Wallace used the states’ rights argument to bar blacks from the state’s
public schools – an action that ultimately moved President Kennedy to
dispatch federal troops. “From a civil rights perspective, what states
like Alabama are doing is going well beyond targeting undocumented
immigrants,” says Cecilia Wang, director of the Immigrants’ Rights
Project of the American Civil Liberties Union, which has joined several
groups, including religious organizations, in challenging immigration
policies in Alabama and other states. “In its anti-immigrant zeal,” Wang
adds, “Alabama has really violated the civil rights of everyone in that
state.”
The federal challenges to new laws in Alabama and Arizona don’t mean
the Administration is dismissive of local immigration efforts. The
federal government is actually recruiting local authorities to
participate in some of its most aggressive deportation programs.
Nevertheless, the federal action sends a clear message: States and local
jurisdictions considering restrictive state immigration policies face
cumbersome legal challenges.
Steven Gray is a Washington Correspondent at TIME. Find him on Twitter at @stevengray or at Facebook/gray.steven. You can also continue the discussion on TIME’s Facebook page and on Twitter at @TIME.