Scribd

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ALABAMASOUTHERN DIVISIONUNITED STATES OF AMERICA,Plaintiff,vs.STATE OF ALABAMA; GOVERNOR ROBERT J. BENTLEY, Defendants.))))))))))Case Number: 2:11-CV-2746-SLBMEMORANDUM OPINIONI. SUMMARY

On June 2, 2011, the Alabama Legislature approved House Bill 56 (H.B. 56), the“Beason-Hammon Alabama Taxpayer and Citizen Protection Act,” Ala. Laws Act 2011-535,hereinafter H.B. 56. On June 9, 2011, Governor Robert Bentley signed the Act into law, withthe majority of its provisions to become effective on September 1, 2011. On August 29,2011, this court temporarily enjoined the Act until September 29, 2011.On August 1, 2011, the United States filed a Complaint against the State of Alabamaand Governor Robert J. Bentley seeking declaratory and injunctive relief contending thatvarious provisions of H.B. 56 are preempted by federal law, and, therefore, violate theSupremacy Clause of the United States Constitution. (Doc. 1.) On the same date, the

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each

1

document as it is filed in the court’s record. References to page numbers in this

FILED

2011 Sep-28 PM 12:35U.S. DISTRICT COURTN.D. OF ALABAMA

Case 2:11-cv-02746-SLB Document 93 Filed 09/28/11 Page 1 of 115

United States filed a Motion for Preliminary Injunction, (doc. 2), seeking to preliminarilyenjoin the following sections of H.B. 56: 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30. The Act declares it “a compelling public interest to discourage illegal immigration byrequiring all agencies within [Alabama] to fully cooperate with federal immigrationauthorities in the enforcement of federal immigration laws.” H.B. 56 § 2. The term “alien”is defined in the Act as “[a]ny person who is not a citizen or national of the United States,as described in 8 U.S.C. § 1101,

et seq

., and amendments thereto.” H.B. 56 § 3.H.B. 56 includes a severability provision, stating that “If any part of this act isdeclared invalid or unconstitutional, that declaration shall not affect the part which remains.” H.B. 56 § 33. Therefore, the court will address the challenges to H.B. 56 on a section-by-section basis. The following sections are challenged by the United States:H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabamalaw for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and isunlawfully present in the United States.H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorizedalien to apply for, solicit, or perform work.H.B. 56 § 12(a), which requires a law enforcement officer to make areasonable attempt, when practicable, to determine the citizenship andimmigration status of a person stopped, detained or arrested when reasonablesuspicion exists that the person is an alien who is unlawfully present in theUnited States.Memorandum Opinion refer to the page numbers assigned to the document by the court’selectronic filing system, not the page number at the bottom of each page.2


H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspireto do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.H.B. 56 § 16, which forbids employers from claiming as business taxdeductions any wages paid to an unauthorized alien.H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized towork while hiring, or retaining, an unauthorized alien.H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable todetermine that the person has a valid driver’s license, the person must betransported to the nearest magistrate; a reasonable effort shall be made todetermine the citizenship of the driver, and if found to be unlawfully presentin the United States the driver shall be detained until prosecution or untilhanded over to federal immigration authorities.H.B. 56 § 27, which bars Alabama courts from enforcing a contract to whicha person who is unlawfully present in the United States is a party. This sectiondoes not apply to contracts for lodging for one night, contracts for the purchaseof food, contracts for medical services, or contracts for transportation for analien to return to his or her country of origin.H.B. 56 § 28, which requires every public elementary and secondary school inAlabama to determine if an enrolling student was born outside the jurisdictionof the United States or is the child of an unlawfully present alien and qualifiesfor assignment to an English as second language class or other remedial program.H.B. 56 § 30, which makes it a felony for an alien not lawfully present in theUnited States to enter into a “business transaction” with the State of Alabamaor any political subdivision thereof.As discussed more fully below, “[a] preliminary injunction is an extraordinary anddrastic remedy.

” Ne. Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of

3
