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Greg Siskind on Immigration Law and Policy

Judge Blocks Sections of South Carolina Law

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Just as has been the case for similar measures in other states, South Carolina's harsh new immigration law has been unable to withstand a challenge in the courts. From The New American:



A judge for the U.S. District Court for the District of South Carolina issued a preliminary
injunction on December 22 against key provisions of the South Carolina immigration statute. The plaintiffs in the  case include a group of civil rights organizations and the United States Department of Justice.

Of the 20 sections of the South Carolina law, four of them were challenged and are now blocked from
enforcement. These four include provisions which that state criminal sanctions for: "harboring and
transporting of unlawfully present persons"; "failure to carry alien registration materials"; "the
creation of fraudulent identification documents"; and the directive to state and local law
enforcement officials to "determine the immigration status of certain persons encountered in
routine traffic stops and other contacts in which there is a 'reasonable suspicion' that the person
may be in the United States unlawfully."

The civil rights groups challenging the law argue that enforcement of the law requires de facto
racial profiling. The Justice Department argues that the Constitution places all power over the
establishment of immigration policy in the hands of the federal government and that the legislature
of South Carolina is thus preempted from passing legislation in that area of the law.


The argument is that once the feds have "occupied the field," of this or that area of the law or policy, then no other government (state or local) may trespass therein.


 

 

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  1. Another Voice's Avatar
    Immigration laws pose a test of states' rights in Supreme Court
    Strict new immigration laws in six states have been partially blocked by lower courts, but they are expected to receive a more favorable ruling by the Supreme Court.

    http://www.latimes.com/news/nationworld/nation/la-na-immigration-courts-20111229,0,2286951.story
  2. Jack's Avatar




    Good link, AV.

    "When Congress last revised the immigration laws, it said states may "cooperate" with the federal government in "the

    identification, apprehension, detention or removal of aliens not lawfully present in the United States." The states

    that have passed restrictive laws say that's exactly what they are doing.

    ----

    This is what is referred to above:

    8 U.S.C. 1357(g)(10) Nothing in this subsection shall be construed to require an agreement under this subsection in

    order for any officer or employee of a State or political subdivision of a State--
    (A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting

    knowledge that a particular alien is not lawfully present in the United States; or
    (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of

    aliens not lawfully present in the United States.


    Anti-state enforcement people who claim a 287(g) agreement is always required like to ignore or play down the above (like they

    do De Canas and other authority). If they acknowledge it all, they like to play up (B). The word "cooperate" is

    their excuse to say DHS has total discretion to shut states down, i.e., if they don't want to enforce, assistance

    offered is thus not cooperative. But what about (A)? Looks like a distinct right of state and local to

    communicate, doesn't it? And that's what's happening when state and local tell ICE they have someone in custody

    they want to check the immigration status of. Oh, no. This separate paragraph, the one ABOVE (B) is really just

    part of (B) and falls under federal discretion to do nothing. Thus (A) really means nothing. Scalia is going to

    ask "So why didn't Congress just leave (A) out or fold it into (B)?" and the anti-enforcement attorney will go

    around in circles for 5 minutes trying to distract from the fact he has no real answer. They also like to say that

    while the statute has that little communication thing, there's no implied authority for states to investigate. Uh,

    OK. It's soley meant for information volunteered out of the blue I guess. Scalia's going to ask if that's what

    Congress intended, why didn't they just say that no investigation can take place? If Congress intended a limit to

    what is communicated and reported, where is it? This court may not agree with all these implied preemption

    arguments that the lower courts are going along with.



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