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Indiana's immigration law reeling

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The U.S. Supreme Court’s June 25 ruling in Arizona v. United States wounded Indiana’s immigration law, particularly controversial provisions similar to those the court struck down in the Arizona case.

“My reading of the Supreme Court case is it further supports our argument that the law is unconstitutional and pre-empted” by federal law, said Ken Falk, legal director for the American Civil Liberties Union of Indiana, which filed one of two federal lawsuits challenging portions of the Indiana law.

Indiana Attorney General Greg Zoeller said in a June 29 interview that he was left with a choice between continuing to defend some portions of the law or allowing a temporary injunction in the ACLU case to be made permanent, the effect of which could be striking down the entire law.
 

zoeller-greg.jpg Zoeller

Zoeller said he planned to talk with lawmakers, and that state and plaintiffs’ attorneys in the lawsuits challenging Indiana’s law had begun discussions about how to proceed.

The question, Zoeller said, is “whether we’re willing to put up with all the facial or as-applied challenges, or whether it’s better for the Legislature to go back and try again.”

The high court struck down most of Arizona’s immigration law. The court affirmed for now the so-called “show your papers” clause requiring police to question someone’s immigration status if reasonable suspicion exists, but justices left open the possibility of future challenges.

“As much as people would disagree with me, I think it keeps the status quo,” attorney Alonzo Rivas said of the Supreme Court ruling, noting the court affirmed unambiguously that immigration policy and enforcement were matters reserved for the federal government. “It wasn’t until recently that states and local governments decided to start dabbling into that area.”

An attorney for the Mexican American Legal Defense and Education Fund, Rivas filed Union Benefica Mexicana v. State of Indiana, et al., 2:11-CV-482, challenging portions of Indiana’s immigration law, Indiana Code 22-4-39.5, enacted when Gov. Mitch Daniels signed Senate Enrolled Act 590 in 2011. Rivas filed the lawsuit in the U.S. District Court for the Northern District of Indiana on behalf of a nonprofit cultural, educational and health membership organization based in East Chicago.

The action Rivas filed challenged the law’s restrictions on employees and employers. The suit claims the law violates the Fourth and 14th amendments, the Supremacy Clause and the Contracts Clause. It specifically cites two sections of the law: one that allows the Department of Workforce Development to file civil actions against employers for reimbursement of unemployment insurance if they knowingly employed illegal immigrants; and a second that prohibits someone from performing day labor without filing an attestation of employment authorization.

In the Southern District of Indiana, the ACLU of Indiana filed Buquer v. Indianapolis, et al., 1:11-CV-78. That lawsuit attacked the Indiana law that it claims steps into federal jurisdiction on detention and identification and violates the Fourth and 14th amendments. It challenged portions of the law allowing state and local law enforcement officers to make warrantless arrests when an officer has a removal order issued for the person by an immigration court, a detainer, or notice of action issued for the person by the U.S. Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. The suit also challenges a provision that would criminalize use or acceptance of a consular identification card.

Both cases were on hold pending the Supreme Court’s Arizona ruling. Judge Sarah Evans Barker granted a temporary injunction against portions of Indiana’s immigration law in Buquer. The ACLU has asked for summary judgment to make the injunction permanent, and a ruling could come at any time.

In Union Benefica Mexicana, the state won a request to stay those proceedings until the high court ruled. The plaintiffs in that case seek a preliminary injunction on enforcing the challenged provisions.

“The U.S. Supreme Court’s decision provides valuable guidance to Indiana and other states in the proper role we serve in cooperation with the federal government in enforcing immigration laws,” Zoeller said in a statement issued the day of the SCOTUS ruling.

“The failure of Congress to reform our immigration statutes has put states in the difficult position of seeking this guidance from the judicial branch.”

Senate Bill 590 author Mike Delph, R-Carmel, could not be reached for comment after the high court ruling, but he issued a statement.

“The Federal government continues to ignore its duty to enforce the law. … Presidents from both parties have pandered for political reasons and now the court is once again suggesting the federal government enforce the law. As long as the law remains unenforced, states like Indiana will bear real taxpayer expense. This is an unfunded mandate.

“Although we are still reviewing (the) United States Supreme Court decision, I remain encouraged and confident that much if not most of our law is legally permissible under this decision.”

Delph said that would include a provision requiring the governor to account for costs borne by Hoosier taxpayers related to illegal immigration and submit a bill to Congress.

Rivas said Indiana is enforcing or developing enforcement regulations for provisions of the law that have not been challenged in court.


ken falk Falk

But immigration attorneys said key parts of Indiana’s law are unlikely to withstand court scrutiny.

Angela Adams, an immigration attorney with Lewis & Kappes P.C., said Indiana’s law gives police the power to detain suspected illegal immigrants who were not suspected of committing a criminal offense.

Such a law isn’t likely to stand, she said, because justices signaled that “if a police officer was to hold someone too long solely for their immigration status, that would raise constitutional concerns.”

In the wake of the SCOTUS ruling, the Obama administration suspended a program that deputized local law enforcement to work in conjunction with federal immigration enforcement. The administration also signaled it would limit detentions of suspected illegal immigrants referred from local law enforcement unless the person detained is a suspected felon.

“That snatches from Arizona the one victory it could claim” from the ruling, said Gary Welsh, a private practice immigration attorney who writes the Indiana Immigration Law Blog.

Zoeller said Indiana’s law also presents practical issues.

“My other clients in law enforcement have been concerned about some of the realities of the enforcement of some of these statutes,” he said. That included concerns about possible escalation that could arise when authorities attempt to detain people under that law.

Welsh said people should take away from the court’s decision that the justices put a check on states, ruling that “the federal government is free to pick and choose which immigration laws it wants to vigorously enforce without any prodding from the states. The federal government’s authority in this area is supreme.”

The ACLU challenged the detentions and ID provisions of Indiana’s law that Falk said exceeded the scope of Arizona’s statute.

Falk envisioned a scenario such as someone buying beer at a grocery store and displaying a consular ID. Under the Indiana immigration law, he said, “That became an infraction for both the person showing and the person accepting it.”

Rivas cited as particularly onerous Indiana’s provision allowing the state to sue business owners found to have employed undocumented workers and recoup unemployment insurance the company paid to workers, regardless of the immigration status of the recipient. “That’s actually a stiff sanction, and we argue it’s a sanction that is pre-empted by federal law,” he said.

Indiana was among five states that passed tough immigration laws after Arizona. Since the Supreme Court announced it would review Arizona’s law, no state has passed new immigration legislation.•

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  • Dabble indeed
    The whole conversation is necessary because the federal government has utterly failed and abdicated its role in defending the borders against migrant invasion such that we have oh who knows, 15, 25, 30 million illegal immigrants here? No wonder the states have tried to "dabble." Dabble! What a word. Chosen by the apologists of crime. Who is that? Loook at all those lined up against the states, that s who. What crime? The crime of unlawful entry. From Obama on down they act like the law isnt even law. Pathetic. You expect anyone to respect the law when the president doesnt? Si se puede! Dabbling is what they have been doing at enforcement, for years. Dubya was just as bad as Obama. Dabbling indeed! One more thing. This policy is at the expense of the the poorest and most unskilled American native-borns who have to compete with all the new unskilled migrants for low paying jobs. A policy of nonenforcement of law that hurts minorities and union workers and young people-- but which panders to the Hispanic lobby. You can see why both democracts and republicans are in favor of non-enofrcement of our borders! Rich republicans get cheap labor and rich democrats get more votes! Oy, whats not to like!??

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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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