In our last Immigration Alert, we reported on the U.S. Supreme Court's decision in Chamber of Commerce v. Whiting, 563 U.S. ___, 131 S. Ct. 1968 (May 26, 2011), and suggested that, by upholding the constitutionality of the Legal Arizona Workers Act ("LAWA"), it might spur states to adopt additional immigration legislation. Given the national perception about lax immigration enforcement and the use of the issue as a potent political weapon, the time seemed ripe for state action. According to the National Conference of State Legislatures, 14 states and Puerto Rico enacted 23 employment-related immigration bills in the first six months of 2011, and a record number of immigration-related bills were introduced into state legislatures during the same period.
Several states, including Alabama, Georgia, Indiana, North Carolina, South Carolina, Tennessee, and Utah, have enacted laws specifically aimed at reducing the level of illegal immigrants living in their jurisdictions. Many of these laws contain provisions similar to those of the LAWA and require employers to use E-Verify, the federal government's employee verification system, or risk loss of their business license. However, several of these laws also contain provisions that give state law enforcement officers far more authority over arresting individuals whom they consider illegal aliens, and that enlist localities, and even public educational institutions, in the battle against illegal immigration.
The swift passage of these laws has generated a variety of responses from all sides of the political spectrum. Proponents hail the "get tough" message they say that the laws send. Opponents in the business community decry the additional costs and efforts that small businesses must absorb to comply. Even the agricultural community is upset because the farmers feel these laws are driving out agricultural workers at the worst possible time, and they will have great difficulty harvesting crops. Predictably, those upset with the laws have initiated court challenges. In Georgia Latino Alliance for Human Rights v. Deal, No. 1:11-CV-1804-TWT (N.D. Ga. June 27, 2011), a federal district court in Georgia upheld the E-Verify provisions of the law, but enjoined many of the other provisions on the ground that they conflicted with federal law, which preempted them. A similar challenge has been mounted by the federal government and several private parties against the new Alabama law and, on August 29, 2011, a federal court in Alabama enjoined enforcement of that statute so that it could consider the merits of its various provisions. See United States v. Alabama, Case Number 2:11-CV-2484, 2736, 2746 (N.D. Ala. Aug. 29, 2011)(S.J. Blackburn, Chief Judge).
At least two states have bucked the trend of more draconian legislation to enact local "DREAM" statutes. As our readers may recall, Congress almost passed a federal "DREAM" Act this summer. It was designed to create a path to legal residence for undocumented children brought here illegally by their parents. On July 25, 2011, California Governor Jerry Brown signed the California Dream Act of 2011 (A.B. 130). This statute increased access to financial aid for all students attending California universities and colleges, regardless of immigration status, as long as an undocumented student files a sworn affidavit agreeing to seek lawful status as soon as allowed to do so. On August 1, 2011, Illinois Governor Pat Quinn signed the Illinois DREAM Act (S.B. 2185), which creates a private scholarship program for high school graduates of immigrant families who want to attend college.