Where Immigration Laws are Made Today – State Capitols and Federal Courts


A 2007 anti-immigration rally in Georgia

A 2007 anti-immigration rally in Georgia. (Photo: Mike Schinkel/flickr)

One by one, states have been enacting their own immigration laws, a response to the lack of leadership and political will in Washington to fix our nation’s broken immigration system. Now we’re starting to see a double-edged trend.

In Arizona, Utah, North Carolina, Indiana, Georgia, Alabama and most recently South Carolina measures have been enacted which focus on what lawmakers see as an intractable problem, undocumented immigration in those states. In turn, federal courts have scrutinized these new measures and deemed parts of them untenable.

U.S. District Judge Sarah Evans Barker blocked parts of Indiana’s new law Friday, reiterating that immigration is a federal matter. She also singled out two specific provisions in the law that “have proven to be seriously flawed and generally unsuccessful.” One has wording that would allow the arrest of anyone who has had any notice of action filed by immigration authorities, which could mean anyone applying to be in the country for any reason. The other is a measure that makes it illegal for immigrants to use identification cards issued by consulates.

Judge Thomas Thrash, also a federal judge,  stopped parts of Georgia’s law on Monday which authorizes local authorities to check the immigration status of suspects who don’t produce proper identification and to detain undocumented immigrants. He also granted a request from civil rights groups to block provisions that penalize people who knowingly transport or harbor undocumented immigrants.

Indiana and Georgia’s stringent new laws join those of Arizona and Utah, key elements of which have been blocked by federal courts. I foresee other state immigration measures being challenged and stalled as well.

South Carolina legislators approved their own bill last week and Governor Nikki Haley quickly signed it into law. But the American Civil Liberties Union plans to contest it, just as it has challenged immigration statutes in Arizona, Utah, Indiana and Georgia. The Palmetto State’s newly minted law should get to a federal judge shortly, who will most likely find fault with it.

This cycle will no doubt continue. As more states pursue their own immigration fixes, they’ll be met by court challenges, followed by injunctions. Then states will file appeals, on and on until Congress and the administration work together successfully to reform the system. Unfortunately the political reality guarantees that this will not happen anytime soon. Immigration is such a hot button issue, with little agreement on how it should be tackled, that our elected officials are more than happy to punt straight through 2012. In the meantime the federal courts will be a battle ground pitting states against civil rights groups, while many immigrants and their families continue to live in fear and uncertainty.

You can follow Erwin on Twitter at @ErwindeLeon.

Avatar photo
AboutErwin de Leon
Erwin de Leon is a Policy Researcher and writer based in Washington, DC. He writes on immigration, LGBT, and nonprofit issues. You can follow him on Twitter at @ErwindeLeon.