Federal Judge Blocks Portions of South Carolina Immigration Law

By Chad Burchard | December 26, 2011

A federal district court judge has enjoined parts of a South Carolina immigration law modeled after Arizona’s S.B. 1070. The law was passed in June and strongly supported by the state’s governor, Nikki Haley.

The Department of Justice (DOJ) filed suit in November seeking an injunction against the enforcement of several aspects of the law, including provisions that (1) make it a felony for anyone to knowingly transport or harbor an unlawful immigrant; (2) outlaw an alien’s failure to carry their registration papers; (3) make it a crime for unlawful immigrants to transport or harbor themselves; and, (4) require state and local police, pursuant to a lawful stop or arrest, to verify the immigration status of those whom they have “reasonable suspicion” to believe are in the country illegally.

Judge Richard Gergel granted an injunction against all of these provisions, agreeing with the DOJ that they were preempted by federal law. “Congress,” Judge Gergel wrote, “adopted a scheme of federal regulation regarding the harboring and transporting of unlawfully present persons so pervasive that it left no room in this area for the state to supplant it.” He similarly concluded that “the federal statutes relating to alien registration documents demonstrate that the national government has adopted a pervasive and comprehensive scheme that leaves no place for state regulation in this area.”

Gergel then moved on to the provision making it a crime for an unlawful immigrant to allow themselves to be transported or harbored within the state. He noted that “[t]here is no comparable federal statute, and it appears that this provision is unique in American law.” He agreed with the DOJ that the provision amounted to a criminalization of “unlawful presence” and that as such it was preempted because it “seek[s] to criminalize what Congress has chosen to treat only as a civil offense.”

Finally, the judge turned to the “verification requirement” that has generated controversy ever since Arizona adopted it as a part of S.B. 1070. The DOJ employed the same arguments against South Carolina that it has used against Arizona and other states that have implemented the measure, namely, that it conflicts with federal enforcement priorities and foreign policy concerns.

“The United States asserts,” wrote Gergel, “that its immigration enforcement policy focuses on the identification, apprehension and deportation of certain classes of unlawfully present persons, including those who ‘pose a clear risk to national security,’ ‘serious felons, repeat offenders or individuals with a lengthy criminal record,’ ‘known gang members’ or others ‘who pose a danger to public safety,’ and individuals with ‘an egregious record of immigration violations.’” Gergel quoted a declaration offered by an ICE official indicating that “the United States has sufficient staff resources in immigration to apprehend, process and deport 400,000 unlawfully present persons a year” and noted the DOJ’s contention that the apprehension “of low priority targets” by state and local law enforcement “through widespread traffic and street level dragnets mandated by [the verification requirement] would … overburden federal immigration enforcement resources and disrupt the federal government’s enforcement scheme.”

The judge also considered the DOJ’s arguments about the law’s implications for foreign policy, citing the concerns of Deputy Secretary of State William Burns that “the implementation by South Carolina of ‘an inflexible immigration enforcement policy based narrowly on criminal sanctions’ would ‘interfere [ ] with the national government’s carefully calibrated policy of immigration regulation’ and potentially cause ‘harm [to] a wide range of delicate U.S. foreign relations interests.’”

Gergel found the DOJ’s arguments for federal preemption of the law convincing. “[The South Carolina law] burdens finite and limited federal immigration resources,” he wrote, “and acts as ‘an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” He also held that the law “improperly infringes on the federal government’s exclusive control of foreign affairs.”

A spokesman for Governor Nikki Haley has said that the state’s involvement would not have been necessary “if the feds were doing their job” but that “until they do, we’re going to keep fighting in South Carolina to be able to enforce our laws.” [Harriet McLeod, Judge Blocks Parts of South Carolina Immigration Law, Reuters, December 22, 2011].