Alabama Anti-Immigrant Law Survives First Legal Challenge

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United States District Court,
N.D. Alabama,
Southern Division.
UNITED STATES of America, Plaintiff,
v.
STATE of Alabama; Governor Robert J. Bentley, Defendants.

No. 2:11–CV–2746–SLB.
Sept. 28, 2011.

Joyce White Vance, Praveen Krishna, U.S. Attorney's Office, Birmingham, AL, C. Lee Reeves, II, Joshua Wilkenfeld, Varu Chilakamarri, United States Department of Justice, Washington, DC, for Plaintiff.

MEMORANDUM OPINION
SHARON LOVELACE BLACKBURN, Chief Judge.

I. SUMMARY
*1 On June 2, 2011, the Alabama Legislature approved House Bill 56 (H.B.56), the “Beason–Hammon Alabama Taxpayer and Citizen Protection Act,” Ala. Laws Act 2011–535, hereinafter H.B. 56. On June 9, 2011, Governor Robert Bentley signed the Act into law, with the majority of its provisions to become effective on September 1, 2011. On August 29, 2011, this court temporarily enjoined the Act until September 29, 2011.

On August 1, 2011, the United States filed a Complaint against the State of Alabama and Governor Robert J. Bentley seeking declaratory and injunctive relief contending that various provisions of H.B. 56 are preempted by federal law, and, therefore, violate the Supremacy Clause of the United States Constitution. (Doc. 1.) FN1 On the same date, the United States filed a Motion for Preliminary Injunction, (doc. 2), seeking to preliminarily enjoin the following sections of H.B. 56: 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30. The Act declares it “a compelling public interest to discourage illegal immigration by requiring all agencies within [Alabama] to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws.” H.B. 56 § 2. The term “alien” is defined in the Act as “[a]ny person who is not a citizen or national of the United States, as described in 8 U.S.C. § 1101, et seq., and amendments thereto.” H.B. 56 § 3.

FN1. Reference to a document number, [“Doc. ____”], refers to the number assigned to each document as it is filed in the court's record. References to page numbers in this Memorandum Opinion refer to the page numbers assigned to the document by the court's electronic filing system, not the page number at the bottom of each page.


H.B. 56 includes a severability provision, stating that “If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.” H.B. 56 § 33. Therefore, the court will address the challenges to H.B. 56 on a section-by-section basis. The following sections are challenged by the United States:

H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.

H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.

H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.

H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.

*2 H.B. 56 § 18, which amends Ala.Code 32–6–9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver's license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

As discussed more fully below, “[a] preliminary injunction is an extraordinary and drastic remedy.” Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Florida, 896 F .2d 1283, 1285 (11th Cir.1990) (citations omitted). Moreover, as the Eleventh Circuit has noted

When a federal court before trial enjoins the enforcement of a municipal ordinance adopted by a duly elected city council, the court overrules the decision of the elected representatives of the people and, thus, in a sense interferes with the processes of democratic government. Such a step can occasionally be justified by the Constitution (itself the highest product of democratic processes). Still, preliminary injunctions of legislative enactments— because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits— must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts.

Id. (emphasis added).

Upon consideration of the Motion for Preliminary Injunction, the memoranda submitted in support of and in opposition to the Motion, the arguments of counsel, the Amici briefs accepted by the court, and the relevant law, the court is of the opinion, as more fully discussed below, that the United States has not met the requirements for a preliminary injunction on its claim that Sections 10, 12(a), 18, 27, 28, and 30 of H.B. 56 are preempted by federal law. Therefore, the motion for preliminary injunction as to these sections will be denied. However, the court is of the opinion, as more fully discussed below, that there is a substantial likelihood that the United States will succeed on the merits of its claim that Sections 11(a), 13, 16, and 17 of H.B. 56 are preempted by federal law. The court further finds that the United States will suffer irreparable harm if these sections of H.B. 56 are not enjoined, the balance of equities favors the entry of an injunction, and its entry would not be adverse to the public interest. Therefore, the Motion for Preliminary Injunction will be granted as to these sections.