Alabama has enacted a sweeping measure designed to deal with the problem of the large number of persons unlawfully present in the United States and residing in Alabama. Among its provisions are sanctions directed toward those who harbor, aid, or assist such persons. There may be a number of grounds upon which a constitutional attack could be directed to this law, but one of the least likely is the suit brought by four Alabama clerics who assert that the law infringes freedom of religious exercise, the right to assembly, free speech, equal protection, and the contracts clause. Here is a copy of the complaint. Here is a New York Times news article about the case, and here is the Times's editorial on this topic.
First, the free exercise claim is a non-starter because the law is of general application -- it does not single out religious exercise for disadvantageous treatment, nor does it require individual application. Employment Division v. Smith. Second, the right of assembly is incidentally affected. Third, religious speakers remain free to say whatever they want -- the law governs non-expressive conduct. The argument that helping people who are unlawfully present in the US is a form of symbolic expression is weak. As the Court said in FAIR v. Rumsfeld, it's not symbolic expression if you have to tell people what your act means, and in this case there is no way to distinguish between charitable aid to citizens and lawful residents and the same aid to unlawful residents. Fourth, classifying people by their residence status is presumptively valid. The factors that made the Court apply some form of enhanced scrutiny in Plyler v. Doe are almost entirely absent in this case. Finally, the contracts clause claim is almost risible. The law has only an incidental impact on any contracts to which the religious plaintiffs may be a party. Exxon v. Eagerton.
As I said, there are other grounds on which the law can be challenged. Immigration is a vexed issue -- it needs to be comprehensively addressed at the federal level, but until then the federal government needs to enforce the law that currently exists. It's no surprise that states step into that vacuum.
The N.D. Ala. held a hearing last Wednesday on the plaintiffs' consolidated motions for preliminary injunction. The law goes into effect on Sept. 1, so we all are waiting on her ruling with some urgency. As you note, there are many constitutional angles on the law, well beyond the Bishops' claims, and Judge Blackburn was very skeptical of the 1st Amendment claims.
Posted by: JRB | August 29, 2011 at 11:57 AM
She stayed the law's implementation until Sept. 29: http://blog.al.com/breaking/2011/08/alabama_immigration_law_blocked.html
Posted by: JRB | August 29, 2011 at 04:38 PM
In my estimation, the federal preemption claim made by the U.S. government in its challenge to the Alabama immigration law arguably is much stronger than the claims of the religious groups. Those claims are described generally in http://www.huffingtonpost.com/2011/08/01/alabama-immigration-law-lawsuit_n_915460.html.
Similar issues are implicated by Arizona's S.B. 1070, which had four core immigration provisions struck down as unconstitutional by the Ninth Circuit. See http://lawprofessors.typepad.com/immigration/2011/04/breaking-news-ninth-circuit-affirms-preliminary-injunction-of-arizonas-sb-1070.html.
SCOTUSBlog held an on-line symposium on the issues raised by United States v. Arizona, see http://www.scotusblog.com/2011/07/announcing-an-on-line-symposium-on-arizona-v-united-states/. The state of Arizona earlier this month filed for cert in that case.
Posted by: Kevin Johnson | August 29, 2011 at 04:55 PM
ILLEGAL ALIENS CAN RUN, BUT THEY CANNOT HIDE!
Of course the open border zealots, the Catholic Church, religious faith groups, business lobbyists and others, want to disrupt the "Secure Communities and E-Verify policies, as this epidemic called illegal immigration cannot skirt around these enforcement innovations. If you contravene the law and get caught; your fingerprints are run through the FBI, ICE and Homeland Security data bases. Once you’re detained the state and local police obtain your prints and then if verified, ICE agents arrive to put a hold on you. As far as the majority of American citizens and residents, you’re a criminal when you entered this sovereign land of the United States; this is whether you dodged the border patrol or over stayed your welcome on a visitor’s visa. Your illegal, and should you be caught in the laws net, you should be arrested and consequently deported.
For the people who live in this nation lawfully, the question to ask is why is this civil offense and not a FELONY? Obviously this was intentional to mislead the naive general public. A subterfuge to reflect for thirty years, our laws were being enforced? Now we have to deal with 20 million plus foreigners without documentation, and although this has been a clever game played by every administration, the NEW TEA PARTY will enforce the 1986 Immigration laws. Then every politician, governor, mayor, judge, police chief will be evicted from office, which are favorable the economical nightmare caused by this illegal alien occupation.
The TEA PARTY (selected leaders) is the only politicians who will fully enforce the 1986 Simpson/Mazzoli bill. The Great state of Georgia, Alabama, Arizona and some to a lesser degree are using the power of their Legislative policing laws. These states are trying to stop the erosion of the financial safety-net, which illegal aliens are stealing from the old, sick and people mental disorders. The federal government has for years forcing unfunded mandates on States that can no longer afford the intrusion of our country by economic illegal aliens. The $113 billion dollars a year that is the amount paid out to these unwelcome foreign squatters should be paid out to supplement our Senior citizens, education of US citizen-resident education, health care and poverty programs. Not to appease illegal aliens with their large families, smuggled through borders.
The U.S. House of Representatives has to act immediately when it returns in September to send the world a reason to follow the law. The courageous and most authoritative signal it can launch, is to pass a nationwide mandatory E-Verify bill that not only stops illegal aliens from getting jobs, but forces business owners to fire the illegal aliens already working for them.
Rep. Smith said that President is trying to placate ethnic groups for not trying to move an amnesty bill through Congress, when Democrats controlled both chambers of Congress. He was deporting thousands of unlawful foreigners, and then changed his mind under the pressure of activists. Now Obama believes in a giant, centralized administration and that is what he perceives; whether or not Congress goes along--and whether or not the American people go along. ..? That’s all very well, if you don’t live in a democracy. It’s not agreeable in the United States of America, where he has taken an oath to uphold the U.S. Constitution and the “Rule of law” and not just to single out and select which laws to enforce. He needs, as president of the United States, to make sure all laws are faithfully executed and that is really bothersome."
Rep. Smith said Congress has two options to stop the new policy. It can hold oversight hearings or defund the agencies, but he said the best clarification is to elect a president that won't provide amnesty through executive actions, again the People’s wishes.
If you want to see your taxation forever rising, then you can sit in your chair and do nothing. Just watch your country as politicians accommodate millions of poor from other countries, subsidized by your money.
My guess if a Judge wants to climb the success ladder, you better cater to the judiciary in the Department of In-Justice.
The TEA PARTY has become a colossal grassroots movement of tens of millions of moderate Americans from all racial and religious backgrounds, political parties, no matter what the undesirable advocacy groups say? The TEA PARTY members share the focused values of restricted government, individual freedoms, personal responsibility, "fair" free markets and above all else returning control to the States and the people. For decades we have had a corrupt Taxation system, that must be rescinded and a flat tax imposed.The tax system was constructed by Attorney-legislators, who have built into the code, incentives, and subsidies and with 57 percent of the American people paying nothing. We need a tax code so everybody pays something, to save our country from bankruptcy. The TEA PARTY is about reforming all political parties and the control, so the key ideology of our Constitution, once again is the true foundation of which this nation is built. The TEA PARTY will have a zero -leniency policy on any kind of Amnesty, Sanctuary cities and States, Dream Acts or anything that supports further incursions of this affliction. The TEA PARTY is the ordinary people of these United States and is ready to expose the corruption in Washington and individual State.
Your vote counts and millions have joined the TEA PARTY to stop the extortion from the American people of their taxes. The Obama stimulus gave billions to banks, foreign and domestic with the assurance they would lend to small businesses which are the backbone of America and the job producers. Instead the banks invested the taxpayer’s money in money market accounts. None of these positive solutions happened and twenty million Americans are out of a full time job, while 8 million illegal aliens have been hired. Call your Senator or Congress person and complain, as you are the voter and have the power to throw them out of office. In this crushing recession we must ensnare every economic illegal alien and remove them forthwith.
ATTN: Illegal aliens do vote and it’s up to the American people to bring this to the attention of their state lawmakers. Discover more about Voter Fraud, by typing these words into Google. Also find out where your dollars are going, when they are pandered to illegal aliens by the federal government and the 50 states. NumbersUSA, Federation of American Immigration Reform. Learn the lies on immigration, along with a listing of 2008 Most Corrupted Politicians at Judicial Watch.
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Posted by: Dave Francis | August 29, 2011 at 09:04 PM