Alabama's New Immigration Law, Part III
Since I first posted a detailed list of what Alabama's new Immigration Law covers, quite a bit has gone on. There have been marches, much discussion on radio, TV and the Internet, and numerous articles in newspapers in Alabama and around the country. This entry will give a broader view of the immigration debate and how Alabama's law may be impacted.
Arizona started the immigration reform bandwagon in January, 2008 when their law became effective. Alabama's law contains many similar provisions to the Arizona law. Since January, 2008, there have been only 3 known enforcement actions against employers. This number may increase since the United States Supreme Court recently found that the "Legal Arizona Workers Act" was not preempted by federal law as it pertains to the mandatory use of the E-Verify system by private sector employers. In a 5-3 decision, the Court found that the federal Immigration Reform and Control Act preserves the authority of states to impose sanctions through licensing, permitting and similar laws. Since the Arizona law only covers knowing and intentional violations, the revocation of licenses can only take place for the more egregious violations. Arizona law also provides a defense from liability when using the E-Verify system. Likewise, Alabama's law contains the "knowing and intentional" language, as well a defense for employers when using the E-Verify system. When a lawsuit is filed against Alabama, I anticipate that the courts will uphold the use of E-Verify, relying on the recent Supreme Court Decision. Although I do not want to focus on the criminal penalties, I anticipate that these sections of the law will be struck down as unconstitutional.
Around the southeast, many states have also enacted Immigration Reform laws. In Georgia, a federal judge temporarily blocked the parts of Georgia's law dealing with power of the police to check the status of suspects who don't have proper identification, as well as parts of the law making it illegal to knowingly and willingly transport or harbor illegal aliens. Parts of immigration laws have also been blocked in Indiana and Utah.
On June 23, 2011, Governor Perdue of North Carolina signed into law that state's mandatory E-Verify bill, requiring private employers with at least 25 employees and all counties and cities to use the E-Verify system to check the status of newly hired employees.
In Tennessee, Governor Haslam signed the Tennessee Lawful Employment Act, which requires all workers with more than 5 workers to either obtain and keep copies of certain I-9 documents or to enroll in the E-Verify system.
In Florida, the Legislature failed to pass a proposed Immigration Reform Act by the close of the legislative session in May. The Legislature is expected to take up the bill again next year. Likewise, an Immigration bill in Mississippi died in the legislature earlier this year.
Practice pointer. I would encourage anyone who is interested in the new Alabama law to read the bill: what is being talked/written about is often not accurate. I anticipate that a lawsuit will be filed seeking to declare all or parts of the law unconstitutional before it becomes effective in September. Although it is difficult to predict the outcome of any lawsuit, I believe that the courts will find parts of Alabama's law unconstitutional: those dealing with police powers and criminal violations for knowingly transporting harboring, renting to or seizing of property. I believe that the E-Verify portions of the law will be upheld.
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