Sen. Scott Beason published his defense of HB56, the Alabama Anti-Immigration Law, in the USA Today op-ed. The crux of his argument was:
Alabama has passed a law that is being decried as draconian, racist, outrageous, inhumane, harsh, cruel, too far reaching, etc. People are surprised to find that most of Alabama’s new law mirrors current United States immigration law. The state of Alabama and the federal government now have similar laws, but Alabama plans to enforce them.
Does HB56 “mirror” federal law? This “mirrors” language has become a political talking point for supporters of this law (Bentley, Rush Limbaugh). It is, in fact, the legal theory raised in defense of HB56.
I think Senator Beason will be surprised to learn that it does not mirror current immigration law.
First, the description of HB56 as a mirror of federal law is a false description. “To mirror” something is to to reflect, represent, follow, mimic, imitate or depict faithfully. Beason-Hammon does not simply follow federal law, it creates crimes entirely new (e.g., those that punish workers, not employers), and even when they rely on a violation of a federal provision, they provide different punishments.
Now, several law professors have debunked the legal basis of the “mirror image” theory of the Arizona law and its copycats. (Remember the Alabama law is Arizona on crack.) For instance, Margaret Stock, professor at the University of Alaska, shows that the Arizona’s law (and the copycat, Alabama HB56) go well beyond federal law:
In defending the federal lawsuit, Arizona has argued that S.B. 1070 is a permissible attempt to engage in concurrent enforcement of federal law because S.B. 1070 only criminalizes behavior that is already unlawful under federal law. In fact, however, the Arizona law criminalizes much behavior that is only a civil violation under federal law.
Under S.B. 1070, Arizona has chosen to criminalize all immigration violations, including those that are civil violations under federal immigration law. For example, Arizona’s law criminalizes the act of being present in Arizona without being authorized under federal immigration law to be present in the United States, but being present without authorization is only a civil violation under federal law. Normally, someone who is present without authorization – such as a person who overstays her permission to be in the United States – would not be charged with a crime by federal authorities, but would merely be ordered to appear before an administrative law judge. If such a person is present in Arizona when S.B. 1070 goes into effect, however, that person will be charged under Arizona state law with a crime; she will be booked into the Arizona state jail system and provided with a defense attorney if she cannot afford one; that attorney must also – under the recent Supreme Court case in Padilla v. Kentucky– provide the person with expert advice as to the immigration consequences of the Arizona criminal conviction. An Arizona state prosecutor must prosecute the case, which may involve determining whether the person is “removable” under federal immigration law; the prosecutor must also prove beyond a reasonable doubt that the person has violated federal immigration law, a matter that will require Arizona prosecutors and defense lawyers to become immigration and citizenship law experts. Once provided with defense counsel, the defendant may also find out that he is really a United States citizen or otherwise entitled to apply for immigration benefits, thus mooting the state prosecution (and potentially giving the person a cause of action for damages for wrongful prosecution).
Congress has created a complex system of civil and criminal immigration laws that are legendary for their variety and complexity. The Department of Homeland Security, the federal agency primarily charged with enforcing this complex code, has generally lacked the full resources necessary to enforce federal law to the letter, and has accordingly adopted a strategy of prioritizing its efforts so as to concentrate on the worst immigration offenders. DHS uses a variety of civil and criminal tools to implement that strategy. To supplement its efforts, the Department has long sought assistance from state and local authorities—but only when the federal government has been able to direct and control those efforts. By creating mandatory state criminal sanctions for even the most minor civil immigration violations, Arizona’s foray into immigration enforcement is likely to disrupt federal immigration enforcement efforts, creating a surge of immigration cases in the civil immigration and federal criminal court systems. If other states copy Arizona’s law, the resulting tidal wave of cases could completely overwhelm federal resources. Given these practical realities, it is understandable that the United States has chosen to seek an injunction against the Arizona law. Rather than being a “force multiplier,” Arizona’s law would impose an even greater burden on the already overwhelmed federal immigration system, threatening to become a “ball and chain” that pushes the system to complete dysfunctionality.
That tidal wave will first hit already understaffed state courtrooms and overcrowded jails first.
(Professor Clack makes a point which will cause an extreme problem for HB56. The Alabama law makes it a crime for an immigrant not to carry his documentation. However, the”law fails to recognize that not all lawfully present immigrants are given documentary proof of their status by federal authorities.” Accordingly, some lawfully present immigrant will be arrested for not possessing “papers” that were never issued to them.)
By criminalizing the “status” of the undocumented, Alabama legislators went well beyond the immigration-enforcement assistance previously allowed by federal law.
In a just released law review, Law Professors Gabriel Chin and Marc Miller explain how the power to arrest is separate from the power to criminalize.
While a state actor’s decision to arrest “leave[s] crucial decision-making power in the hands of the Federal government, which is free to choose among criminal, civil and administrative sanctions and remedies authorized by the INA,” state decisions to legislate or to prosecute eliminate that federal discretion.
The distinction between arrest, on the one hand, and criminalization and prosecution on the other, is critical. Arrests leave discretionary decisions in the hands of the federal authorities. Even after an independent state decision to arrest, the suspect is handed over to federal authorities for disposition. Under the INA federal authorities can still decide whether to proceed with a prosecution, use a civil remedy or grant some form of relief or visa to which the noncitizen is entitled under the law. The discretion inherent in the federal immigration regime, and in federal criminal enforcement more generally—the power to charge or not, to decide what to charge, to use civil or administrative responses—is as much of part of the law of immigration as the relevant statutory text. States are free to support federal civil policies in various ways, including hearing some federal claims as such in state courts, and passing complementary civil laws. In the criminal context the rule is reversed. By Supreme Court decision and federal statutes dating the Judiciary Act of 1789, federal crimes may be tried only in federal courts.
As an excellent example of the precedent being requested, the professors show:
For example, local police are authorized by federal statute to arrest deserters from active duty service in the United States military.110 However, this does not imply that states and
localities are invited to establish rules for military discipline of active duty troops and try them in their courts.
Even if states are allowed to “mirror” federal laws, as mentioned above, HB56 does not follow or repeat federal immigration law. Professor Carissa Hessick points out that mirror image is not even applicable for some provisions of HB56.
Of course, not all of the challenged provisions in S.B. 1070 can be justified under the mirror image theory. For example, Section 5(C) criminalizes unauthorized work and attempts to secure such work, even though federal legislation targets employers who hire unauthorized workers rather than the workers themselves.”
This is the crux of the preemption arguments; it is also the reason most of the law will likely be struck down as unconstitutional.