Controversial Arizona-like Immigration Bill Comes to Illinois

On April 23, 2010, Arizona Governor, Jan Brewer signed SB1070 into law, sparking national outrage and debate. The most controversial provision in the law is contained in Sec. 11-1051(B), which reads, in pertinent part, that:

"For any lawful stop, detention or arrest made by a law enforcement official...in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status of the person before the person is released."

SB1070 outraged the hispanic community because they perceived the law as unfairly and disproportionately targeting lawful hispanic residents and aliens from Mexico. The Federal government was outraged by SB1070 because it perceived the law as impinging upon its constitutional right to regulate immigration law. It was the Supremacy Clause argument by the Federal Government, and not the equal protection argument made by angry citizens, that persuaded District Court Judge Susan Bolton to issue a preliminary injunction on July 28, 2010, enjoining certain provisions of SB1070, such as the 11-1051(B) provision above. The state of Arizona filed an interlocutory appeal in the U.S. C.O.A. 9th Circuit, which is still pending. Meanwhile, SB1070 has found its way to Illinois in the form of HB6937.

HB6937, unlike SB1070, has not yet been signed into law. The First Reading of HB6937 was on November, 10, 2010, after which it was referred to the House Rules Committee, where it is now under review. HB6937, which contains language almost identical to 11-1051(B) above, also criminalizes willful failure to complete or carry an alien registration document; soliciting employment, applying for employment, or working as an unauthorized alien; stopping a vehicle to hire a worker; and transporting, concealing, or harboring an unauthorized alien.

The most controversial provision of HB6937, like SB1070, is the 11-1051(B)-like provision requiring officers to ascertain a driver's immigration status "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." Even though 11-1051(B) also contains the provisio that "A law enforcement official or agency of this State or a political subdivision of this State may not consider race, color, or national origin in implementing the requirements of this subsection (b) except to the extent permitted by the United States or Illinois Constitution," civil liberties advocates are nonetheless concerned that officers will actually use these factors to form their "reasonable suspicion" and that hispanics will therefore disproportionately be affected by this provision.

Though an equal protection argument like this would seem to carry the day on this issue, I believe that even if HB6937 survives the immense political opposition that it is sure to receive in Democrat-dominated Illinois, it will suffer the same fate as SB1070 in Federal Court. Though the District Court chose not to enjoin SB1070 in its entirety, it did enjoin 11-1051(B) on Supremacy Clause grounds. The Supremacy Clause in Article VI, makes federal law the "supreme law of the land." Furthermore, the "the Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers." Bolton Order at 10. The U.S. government argued that 11-1051(B) is preempted because it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities." Bolton Order at 14. The court agreed, enjoining 11-501(B) because, among other reasons, 11-1051(B) subjecting legally present aliens to "'the possibility of inquisitorial practices and police surveillance," in contravention of Supreme Court case law." Bolton Order at 17.

Even if HB6937 makes it through the legislative gauntlet it will surely enter, the law will probably be struck down as unconstitutional on Supremacy Clause grounds. I don't envision courts allowing states to enact their own immigration legislation when the federal government's exclusive power over immigration laws is rooted in the Constitution.