Marchers leave Linn Park during a silent protest of Alabama's new immigration law in Birmingham, Ala., Saturday, June 25, 2011. (The Birmingham News/Mark Almond)HUNTSVILLE, Alabama -- Being sued by the U.S. Justice Department, Alabama will be back in federal court Wednesday. But unlike disputes in the 1960s and 1970s, Alabama says this time its only fault is trying too fully to cooperate with federal law.
The Justice Department disagrees, calling the state's new immigration law an "inflexible Alabama-specific approach" that is by any definition "non-cooperative."
Alabama Attorney General Luther Strange is expected to lead a team of lawyers that will argue for the state. The Attorney General's Office declined to comment on the hearing, saying its positions are laid out in the court record.
"For there is a marked difference between this case and other suits filed decades ago, also styled United States v. Alabama, during an era of the State's history that is now thankfully part of the past," attorneys for the state wrote in a court filing earlier this month.
"In contrast to the suits filed then," the state writes, "the United States here has no occasion to allege that Alabama or its leaders are defying federal law. To the contrary, the entire point of the Alabama statute at issue is to require Alabama and its officials to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws."
The U.S. Department of Justice, leaders from three large Alabama churches and a host of interest groups and individual plaintiffs will ask U.S. District Judge Sharon Lovelace Blackburn in the hearing in Birmingham to block implementation of the law. Most provisions are set to take effect on Sept. 1.
They contend the law, which Alabama legislators say is carefully designed to mirror federal immigration law, violates many Constitutional rights. Alabama argues that the state has been harmed in numerous ways by illegal immigration.
The filings and replies roam all over the law and U.S. Constitution. Arguments range from denial of church sacraments to people being held indefinitely without charge to Alabama's intention to count illegal immigrant children to determine how many English as a Second Language teachers are needed.
In order to secure a preliminary injunction, the plaintiffs will have to show two things, said John Carroll, a retired federal judge and dean of Cumberland School of Law. First, they must be able to prove there will be an injury if the law is not blocked. Second, they have to persuade the judge there is a strong chance they will ultimately win the case.
Alabama's law covers more ground than immigration laws passed by Arizona, Georgia, Indiana and Utah, which have been blocked at least temporarily by federal courts. None have reached the Supreme Court.
At the center of the argument is the federal government's contention that the Supremacy Clause of the U.S. Constitution gives it the sole power to set national immigration policy. U.S. government lawyers dismiss Alabama's claims of cooperation as laid out in the law, known as House Bill 56.
" HB 56 attempts to displace the federal government's exclusive authority to create a systematic scheme for the administration and enforcement of the federal government's own immigration laws by codifying an inflexible Alabama-specific approach that is, by any definition, "non-cooperative,'" the government wrote.
The question of whether Congress intended to give states a role in enforcing immigration law and how far the states can go is just one of several major issues Judge Blackburn is being asked to weigh.
Attorneys for Alabama argue that it is not a violation of federal law if its stepped-up enforcement results in federal agents having more cases to handle and more requests to determine a person's immigration status.
A filing by a group of Alabama legislators contends the federal government's opposition to portions of Alabama law is directly at odds with what Congress intended in terms of operation of the Department of Homeland Security.
"Congress requires the federal government to respond to inquiries about citizenship and immigration status," they wrote. "Congress did not say that DHS shall respond to inquiries when it so chooses."
The federal government is challenging 10 major sections of the law, including portions criminalizing work by illegal immigrants and renting property to them. It opposes the provisions that seek immigration status information from school children and provisions barring illegal immigrants from entering contracts.
And it opposes the state's plans to jail and fine any person 18 or older who is not carrying paperwork showing they are here legally, calling it a "thinly veiled and impermissible attempt to criminalize unlawful presence," which "Congress has repeatedly declined to do."
The state disagrees and says its requirements for proper paperwork simply mirror federal laws.
But the Hispanic Interest Coalition of Alabama argues that Alabama has invented a "novel doctrine" of "concurrent enforcement" and it argues "no court has ever recognized or applied such a doctrine."
It also says Alabama's criminalizing work or soliciting work by an illegal immigrant is incompatible with federal law.
"HB 56 allows Alabama to put in jail individuals who may be in the process of trying to adjust their immigration status or obtain work authorization through federally prescribed procedures, " the coalition plaintiffs argue.
The state also faces challenges from leaders of the United Methodist, Episcopal and Catholic churches, which say the law will harm their ministries, including transporting, caring for and offering housing and other services to church members who may be here illegally.
Alabama argues the law should not be blocked in advance of its implementation because the church officials can't show an imminent threat of prosecution and that church practices such as marriage and baptism will not be affected by the contract ban. State attorneys also question the standing of the church leaders to speak for the more than 300,000 members of their various churches.
In an argument for the injunction, church officials filed an affidavit by state Sen. Roger Bedford, D-Russellville. He had inserted a measure in the Senate version of the immigration bill that would have barred prosecution of religious organizations. Bedford said the measure passed the Senate, but was not included in the final act.
Church officials argued that if Alabama did not want to prosecute church personnel and activities it would have left the measure in place.
"God does not decide if you are legal or illegal," Bedford wrote in his affidavit. "He decides if you are saved or unsaved.
"I offered the Bedford Amendment to make it very clear that it would not be against the law for a church to go into a community and bring people in for a religious event or take them back after that event was over," he wrote. "I wanted to ensure that there was no gray area where a church could get into trouble for reaching out to the lost."
In wrapping up its opposition to an injunction, Alabama's attorneys draw on familiar arguments for states' rights.
"The public consequences to Alabama from enjoining (the law) are significant," the state attorneys wrote. "The Act represents a good-faith attempt to help stem the tide of illegal immigration in the State, and no one can know how efficacious that attempt will be until the law is allowed to go into effect.
"Federalism concerns thus counsel heavily against an injunction here."