Observations on the Court Arguments on the Appeal of Alabama’s HB56

1 March 2012.

Atlanta, GA

by Juan Cartagena, LatinoJustice PRLDEF President and General Counsel

I’m on location in Atlanta attending the oral arguments in two important appeals to the latest wave of state anti-immigrant laws that in many ways try to make life impossible for undocumented Latinos, and make life a nightmare for any Latino who dares to continue to live in these states.

The issue before the U.S. Court of Appeals was whether to continue a court order (injunction) suspending the implementation of most of Alabama’s HB56 anti-immigrant law – easily the worst in the country. As an added treat, the same panel of 3 appellate judges had to decide whether to continue an injunction against Georgia’s anti-immigrant law which more closely follows the seminal Arizona SB70.

Security was tight. Protesters were expected. A full courtroom along with two overflow rooms were set up to accommodate the public in one of the most closely watched lawsuits in the Latino community. Everyone was warned to get there early – not easy for a group of lawyers and activists from national organizations that descended on Atlanta the night before.

I heard the irony of a conversation related to me by one of the attorneys who overheard a court marshal inquire of her supervisor what to do with a representative of the state Attorney General’s office who attempted to enter the courthouse without ID. Think about it: here was a person from the office that defends the rights of states to demand ID from Latinos at a whim who can’t get into the very courthouse that will decide whether the state can continue to target Latino immigrants -- and all because he had no ID!

I felt industrial carpet on the soles of my feet as I walked towards the ubiquitous metal detectors in federal buildings – I know all about metal detectors but this was the first time in my 30 year career of civil rights lawyering that I had to remove my shoes to enter a federal courthouse.

I saw ten members of the press sandwiched into a pew that seats eight because only the quota of press credentialed reporters for the live show was maxed at 10. Everyone else went into the overflow rooms. As 10 men and women of the 4th Estate crowded into one bench, supporting attorneys had a slightly more accommodating bench arrangement. When one reporter spoke up the response from the court marshal was “It was supposed to be tighter.”

I smelled the faint whiff of old, decorative wood paneling stretching upwards of 20 feet in a majestic, Southern Elbert Tuttle U.S. Court of Appeals Building.

All of this was prelude to an illuminating morning of judicial deliberations.

The first announcement was that no decisions would be issued by this panel of judges until the U.S. Supreme Court decided the Arizona anti-immigrant case in Whiting. No surprise here.

The rest of the morning was devoted to arguments and counter-arguments on the important and vexing issues of the day: in the absence of comprehensive, federal immigration reform, will we allow 50 states to devise their own counter-productive, ill-suiting and profoundly discriminatory immigration schemes?

Predicting outcomes from oral arguments in court is like reading tea leaves. Nothing goes. So we’ll await the outcome of our request to stop the Alabama anti-immigrant law in its tracks.

In the meantime, here are some of the best lines from today (paraphrased):

Alabama specifically intended to make every aspect of an immigrant’s life impossible so that they will deport themselves. Even the exceptions they carved into the law point towards expelling every undocumented immigrant from their borders, e.g., the only contracts the undocumented are allowed to make are those that require compliance in 24 hours or those that permit their transportation out of the state. The message is clear “you can pass through our State but you better be gone by morning.” Shades of Sundown Towns here –the rash of municipal ordinances all the way through the 1960s that populated the law books of towns from the South, North and Midwest, that made it crime for Blacks to remain within town borders past sundown. Alabama – the Sundown State for Latinos.

Best lines from the court (paraphrased) If all 50 states adopted Alabama’s law to criminalize business transactions with the state if you’re undocumented and the law to refuse to enforce contracts with persons who are undocumented, how would these residents of the country live? How would they access basic services like water? How is that not a State (not federal) program to exclude them from the U.S.?

In response to the Alabama’s attorney definitively declaring that HB56 does not deprive any child a public education (all it asks for is documentation of how undocumented children or their parents, attend Alabama’s public schools): Well, if they’re required to disclose if they’re undocumented then they risk deportation and thus they’ll be deprived of a public school education in Alabama.

Best line from the other side (I have to admit): This lawsuit was a challenge to our law on its face – not as applied. With time we would have been able to address all the exemptions necessary to conform to the Constitution.

Best line in rebuttal to the above (paraphrased): Our clients are suffering an ongoing harm now – many of them whose applications for adjustment of immigrant status is pending, cannot travel the roads of Alabama without being stopped and detained, cannot engage in contracts. HB56 needs to be enjoined (stopped) now. Once you require school children to disclose their undocumented status, or that of their parents, no matter what Alabama says today, the label of “unlawful presence” attaches to them and follows them as a stigma which may result in eventual deportation.

Best line from the other side that proves our point: Court: Are you saying that Alabama is not engaged in passing this law in a policy of exclusion of immigrants? That the State did not intend to exclude them from Alabama? AL atty: “I would not take the position that that was not the intent of the law.” All said to a ripple of laughter from the audience.

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