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Top five immigration stories of 2011, #1: The battle in the states

Photo by TK/Flickr (Creative Commons)

A year ago, when Multi-American was counting down the top five immigration stories of 2010, topping the list with Arizona's game-changing SB 1070 was a no-brainer. Not necessarily because news of the 2010 anti-illegal immigration law dominated immigration coverage last year, but because of the lasting impact the law was bound to have on other states. I wrote then:
What continues to make SB 1070 such an important story are its ramifications beyond Arizona, which will be playing out in the years to come. Even with some of its provisions still hung up in appeals court by the pending federal challenge, SB 1070 has emboldened conservative state legislators around the country to draft their own versions of the law, some just as strict or more so than the original.

A year later, SB 1070-inspired immigration enforcement bills have made their way through statehouses around the country. Similarly strict laws have taken effect in states like Alabama, Georgia, Utah, Indiana and South Carolina.

Like the Arizona measure that inspired them, headed to the U.S. Supreme Court on a state appeal, all of these face their own court challenges. Federal judges have blocked several of these laws' most stringent provisions, including a controversial provision in Alabama that would require public schools to check the immigration status of students, which when the law first took effect prompted a rash of school absences.

Agricultural states like Georgia and Alabama, meanwhile, have experienced severe labor shortages as immigrant farm workers have fled their fields for more welcoming climes.

The new laws enacted are but one small aspect of what's been happening in the states. The National Conference of State Legislatures reported recently that in 2011, there were 1,607 bills and resolutions relating to immigrants and refugees introduced in all 50 states and Puerto Rico, significantly up from a little more than 1,400 in 2010. Bolstered by the relative success of SB 1070, even as parts of the law remain hung up in court, immigration restriction-minded legislators in many states banded together, working with the same legal teams to help them draft immigration crackdown bills.

Interestingly, in spite of the bill-filing fury, 11 percent fewer of these state immigration bills became law this year than in 2010. Among those that didn't get anywhere were a series of bills intended to end birthright citizenship for the U.S.-born babies of undocumented immigrants, written with the aid of the same legal counsel behind SB 1070 and introduced in states like Arizona, Indiana and Iowa. Also voted down was an Arizona "omnibus" bill that would have denied public services to undocumented immigrants, similarly to California's ill-fated Proposition 187 in 1994, and an Arizona bill requiring that hospitals check for patients' immigration status.

Where does it go from here? The Supreme Court decision on SB 1070 could well hold the answer.

The high court, which is expected to hear Arizona's appeal in the spring, won’t be weighing the merits of SB 1070 but rather the merits of a lower federal court judge’s decision to block parts of it from being enforced on the eve of its implementation in July 2010, pending a constitutional challenge from the Obama administration. Among the provisions put on hold was perhaps its most controversial, one empowering local police to check the immigration status of people they had "reasonable suspicion" to believe were in the country illegally. The federal lawsuit challenging SB 1070 asserts that immigration law is the domain of the federal government and that it pre-empts attempts by states to set their own immigration rules.

How the Supreme Court rules on SB 1070 could either encourage or put the brakes on state immigration bills. Federal court judges in other states have issued temporary injunctions – just as was done in Arizona – blocking parts of the new state laws in Georgia, Alabama, Utah, Indiana and South Carolina. The high court's decision could have a bearing on these; if the partial block of the Arizona law is lifted, it could also affect the injunctions blocking portions of other state immigration laws while legal challenges wind their way through the courts. Some states have already requested that challenges to their new laws be put on hold pending a decision.

So far, the Supreme Court has sent signals that have encouraged proponents of state immigration laws. Earlier this year, the court ruled in favor of a previous Arizona anti-illegal immigration law, a 2007 measure mandating employers to use a federal program called E-Verify to check workers’s immigration status and punishing those who don’t comply. Many of the state laws that have followed SB 1070 have had similar employer provisions.

For legislators pushing state immigration crackdowns, the employer angle is becoming more popular, especially in light of the lawsuits and controversy focused on law enforcement-based provisions (i.e. local cops checking for immigration status) that by now have been blocked by courts in several states. In a recent interview with USA Today, Kansas Secretary of State Kris Kobach, an attorney who has worked with several states to draft anti-illegal immigration bills, said that legislators would likely continue expanding the use of E-Verify.

That, and another employer-related enforcement trend that could work its way into future state bills: A crackdown on contracts made with undocumented immigrants. From the story:

Kobach said Alabama was the first state to invalidate all contracts entered into with illegal immigrants. A strict reading of the law could mean that any contract, including mortgages, apartment leases and basic work agreements, can be ruled null and void.

"That is one that has a much greater effect than some people might expect at first glance," Kobach said. "Suppose an illegal alien is doing some roofing business and wants to rent some equipment. Some short-term or long-term rental suddenly becomes more difficult to do."

As the legal firestorm that began in Arizona moves to the Supreme Court, the immigration battle in the states will continue to be a closely watched story in 2012. And as state legislators seeking to push immigration crackdowns continue looking for what's going to stick, it's a story that won't be going away any time soon.