Judge: State can’t enforce 2 parts of immigration law

U.S. Judge Sarah Evans Barker has ruled that the state can’t enforce two sections of the Indiana law dealing with immigration: one dealing with arrests and one dealing with the use of consular identification cards for identification.

Three immigrants living in central Indiana sued to stop enforcement of two provisions of Senate Enrolled Act 590 passed in 2011. The new law amended statute to allow state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer, or notice of action issued for the person by the U.S. Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies – Section 20 of the law. The law also creates a new infraction for any person other than a police officer who knowingly or intentionally offers or accepts a consular identification card as a valid form of ID for any purpose – Section 18 of the law.

Barker originally granted a preliminary injunction in Ingrid Buquer, et al. v. City of Indianapolis, et al., No. 1:11-CV-708, on enforcement of these two provisions in June 2011 before the law had taken effect. On Thursday, she made the injunction permanent, writing “our view of the appropriate final determination of these issues remains unchanged.”

She pointed out that the court has modified and extended that preliminary analysis only to the extent necessitated by recent judicial decisions – including Arizona v. United States, 132 S.C. 2492 (2012).  

“Federal immigration law consists of a veritable tapestry of individual regulatory and policy threads woven together to create a balanced whole. In order to maintain that balance throughout the country, federal law vests discretion at the federal level regarding whether and which persons without full, lawful alien status should be arrested,” Barker wrote. “Section 20 impermissibly alters that balance by authorizing the arrest for immigration matters of individuals only within the boundaries of the State of Indiana whom, in many cases, the federal government does not seek or intend to be detained. As such, Section 20 significantly disrupts and interferes with federal discretion relating to immigration enforcement and the appropriate, preferred methods for carrying out those enforcement responsibilities.”

She noted in Thursday’s 43-page order that the section also runs afoul of the Fourth Amendment and is unconstitutional on those grounds.

Regarding Section 18’s preemption by federal law, Barker wrote, “These sweeping regulations, targeted solely at foreign government-issued identification that consulates are entitled to issue, and which restrict the manner in which foreign citizens may travel, live, and trade in the United States, have a direct effect on our nation’s interactions with foreign nations. Such interactions cannot be dictated or restricted by individual states.”

She also held that Section 18 is not rationally related to the state government interest and violates substantive due process.

Barker dismissed the plaintiffs’ claims against the city of Indianapolis without prejudice because they are unripe at this time.

The lawsuit was brought by the ACLU of Indiana. In a statement released Friday, legal director Ken Falk said, "This ruling demonstrates that the Constitution applies to all Indiana residents and that the state cannot presume to regulate immigration."

Indiana Attorney General Greg Zoeller also responded to Barker’s ruling.

“I take my responsibility to defend the statutes the Legislature passes from legal challenge as an important role of the office I hold. The court recognized that the Office of the Attorney General has faithfully defended all provisions of this statute until the U.S. Supreme Court last June said that state-level warrantless arrest laws are preempted as unconstitutional.  Now that the federal court decision reinforces what we said all along — that immigration enforcement is a federal government not a state responsibility — this case is at an end and the state will not appeal.  We are pleased that Judge Barker’s ruling has underscored and reiterated the responsibility of my office to defend state statutes as is our solemn obligation,” Zoeller said in a statement.

Barker also issued a separate order denying a motion to intervene filed last year by Republican Sens. Mike Delph, Brent Steele and Phil Boots. They wanted to defended portions of the state’s immigration law that Zoeller determined after the Arizona ruling could not withstand constitutional scrutiny.

“Having carefully reviewed the senators’ request, we cannot endorse the result they seek, and their motion to intervene must be denied. As would-be suitors these three legislators lack the power to substitute themselves for the Office of the Attorney General in order to pursue their own strategic litigation preferences,” Barker wrote in the order.