The U.S. Justice Department and civil rights groups want an injunction blocking the law’s Jan. 1 start, arguing that it’s unconstitutional and interferes with federal law. The federal government is challenging fewer sections than the American Civil Liberties Union, which wants the entire law thrown out.
U.S. District Judge Richard Gergel denied the state’s request that he suspend all court hearings on the case until the U.S. Supreme Court rules on a challenge to Arizona’s similar law.
Deputy Attorney General Emory Smith said the nation’s high court will likely rule in six months or less.
If the South Carolina law violates someone’s rights, however, “even a day of violation is too long,” Gergel said.
Gergel’s questioning of an ACLU attorney indicated he would not block the entire law. Doing so would knock out sections that are clearly lawful, he said, pointing to the mandate that all businesses check their new hires’ legal status through a federal online system. Businesses that knowingly violate the law could have their operating licenses revoked.
He also specified as “a good thing” the section directing state law enforcement to enter a federal cooperative program that effectively deputizes local officers to enforce federal immigration laws on the streets and in jails.
Both the federal government and civil rights groups want to halt the section requiring police to question a person’s immigration status if officers suspect the individual is in the country illegally. The questioning must follow a stop or arrest for something else. The measure bars officers from holding someone solely on that suspicion.
Opponents railed against the measure as encouraging racial profiling. Gergel repeatedly referred to it as the “traffic dragnet.”
“The state doesn’t like me calling it a traffic dragnet, but that’s what it is,” he said.
The state argued that officers can call federal authorities about a suspect’s immigration status now. Gergel responded that the difference is that the law mandates it for “every traffic stop, every street encounter.”
He questioned whether the state law fundamentally alters the federal government’s decision to focus limited resources on illegal immigrants who are terrorists, gang members and other criminals.
Gergel is also considering sections that charge an immigrant with a state crime for not carrying paperwork on their legal status, and make it a crime for illegal immigrants to transport or house themselves.
While federal law also requires that immigrants be able to produce paperwork, the federal government has decided not to enforce it, so South Carolina is attempting to supersede on the matter, said ACLU attorney Andre Segura.
Gergel pointed out that missionaries, victims of trafficking, women who are victims of violence and immigrants seeking asylum are here lawfully, and could be going through the process of being documented, but lack registration.
“Someone’s seeking asylum because he’s being tortured in his own country ... and we’re going to pull him over on the way to Piggly Wiggly and throw him in jail?” Gergel asked.
He said the new state crime of harboring oneself is an obvious, dressed-up version of making it a crime to be an illegal immigrant, rather than a civil violation under federal law.
Unlike the federal government, the civil rights groups also are challenging a section that makes it a felony for someone to make fake documents for illegal immigrants. The civil rights coalition includes the ACLU, Southern Poverty Law Center, the National Immigration Law Center, the Mexican American Legal Defense and Educational Fund, and the South Carolina Appleseed Legal Justice Center.
Gergel discounted the state’s argument that the federal government doesn’t have the authority to sue, incredulously asking if the state believes the federal government has no right to come into federal court and argue a state law preempts its authority on immigration and foreign policy. He said surely the state knows that’s not right.
“As a practical matter, there’s got to be one cook in the kitchen,” he said.
Gergel also chastised the tone of filings by civil rights groups, calling it unnecessary to suggest that legislators acted out of meanness.
“I know all these legislators. It’s a small state. They acted in good faith,” he said. “They may have gotten it wrong.”