January 19th, 2012
South Carolina’s Immigration Law Challenges The Constitution

By Christopher Rangel

South Carolina ranked number one in Latino growth for the 2000-2010 decade with a growth rate of 148%, at the same time that  legislators followed Arizona’s footsteps with one of the toughest immigration laws in the country. On June 27 of last year, South Carolina Governor Nikki Haley signed into law SB 20, South Carolina’s Illegal Immigration Reform Act. Six months later, U.S. District Judge Richard Gergel issued an injunction blocking three key and controversial provisions of the law, days before the law would have taken effect on January 1 of this year.

The provisions blocked include the ability of a police officer to inquiry on individual’s immigration status, the charge of felony for knowingly harboring or transporting an undocumented person, and the requirement for registered aliens to carry registration documents. The U.S. Department of Justice and ACLU and civil rights’ groups have welcomed the injunction, while Gov. Nikki Haley’s spokesman commented the state would keep fighting to enforce their laws. This suggests an interesting tension between the federal and state government that deserves further analysis.

At the center of debate are tough immigration stances such as those of Haley, who said she believes that by signing the bill into law, the state supports legal immigration and is enforcing the laws of the nation regarding immigration. On the other hand, the federal government filed a lawsuit against the state, citing, “South Carolina’s law clearly conflicts with the policies and priorities adopted by the federal government and therefore cannot stand.” The Dept. of Justice states the law is unconstitutional and in violation of the Supremacy Clause found in Article VI of the U.S. Constitution; which essentially means the state is interfering with federal law.

The Department of Justice maintains South Carolina’s SB 20 is in conflict with The Immigration and Nationality Act, per the Supremacy Clause. The ACLU along with a coalition of civil rights groups had also filed a complaint; it maintains that the state law interferes with federal law by attempting to regulate immigration. More importantly, it argues the unconstitutionality of the law for violating the 4th and 14th Amendments. ACLU argues that by allowing law enforcement officials who have “reasonable suspicion” to detain an individual, the law violates against the “unreasonable searches and seizures” section, found in the 4th Amendment. Finally, the law violates both the Equal Protection Clause and Due Process Clause, of the 14th Amendment, in that it allows for the discrimination against non-citizens on the basis of legal status or persons “suspected” to be “unlawfully present” in the State of South Carolina.

What does this mean and why is it important?

There are two central issues involved. This is about states’ rights and the authority of the federal government to regulate immigration. Most legislators who authored and sponsored the legislation agreed that the nation’s immigration system is broken, and the federal government has not enforced current federal immigration laws. Politicians in South Carolina would agree that it is up to each individual state to implement its own immigration laws if the federal government continues to remain inactive. The other issue is the unanticipated consequences controversial immigration laws — like South Carolina’s — have on Latinos.

Imagine living in South Carolina, what would have been a routine traffic stop for any number of reasons could turn into a lengthier experience as a result of a person’s accent or appearance. The potential for racial profiling, I believe, is too great for the experimentation of immigration laws at the state level. Also important, rights protected by the U.S. Constitution could be infringed. Finally, with other states’ immigration laws facing similar lawsuits, one comes to the conclusion that immigration laws and how they are to be applied are at a critical turning point, reminiscent of the immigration reform that arose with the panic of European immigrants to the U.S in the 1910s and 20s and culminated in the passage of the immigration laws.

It will not be until the Supreme Court decides the Arizona v. United States, 11-182 immigration case that a resolve will be available for South Carolina’s law, as well as direction into the path immigration laws are headed.

Christopher Rangel is a student at the University of Texas at Austin.

[Photo By SC Governor’s Office]

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