Alabama

Alabama in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): 8. Alabama's H.B. 56 also must be viewed in the context of the recent proliferation of stringent state laws addressed to the issue of immigration enforcement. Arizona enacted such a law, after which H.B. 56 was modeled in part, in April 2010; Utah enacted such a law in March 2011; Georgia and Indiana enacted such laws in May 2011; and South Carolina enacted such a law in June 2011. The first law in this series, Arizona's S.B. 1070, created significant difficulties for U.S. bilateral relationships with many countries, particularly in the Western Hemisphere, and provoked vociferous and sustained criticism in a variety of regional and multilateral bodies. Foreign governments and international organizations expressed serious concerns regarding the potential for discriminatory treatment of foreign nationals posed by S.B. 1070, among other issues. These same criticisms and concerns have been reasserted—and expanded upon—in response to the recent wave of state laws, including H.B. 56.

9. By deviating from federal immigration enforcement policies as well as federal rules governing work, travel, housing, contracting, and educational enrollment by foreign nationals, and by seeking to regulate virtually every aspect of certain aliens' lives, H.B. 56 threatens at least three different serious harms to U.S. foreign relations.

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• First, H.B. 56 risks reciprocal and retaliatory treatment of U.S. citizens abroad, whom foreign governments may subject to equivalently rigid or otherwise hostile immigration regulations, with significant potential harm to the ability of U.S. citizens to travel, conduct business, and live abroad. Reciprocal treatment is an important concern in immigration policy, and U.S. immigration laws must always be adopted and administered with sensitivity to the potential for reciprocal or retaliatory treatment of U.S. nationals by foreign governments.

• Second, H.B. 56 antagonizes foreign governments and their populations, both at home and in the United States, likely making them less willing to negotiate, cooperate with, or support the United States across a broad range of foreign policy issues. U.S. immigration policy and treatment of foreign nationals can directly affect the United States' ability to negotiate and implement favorable trade and investment agreements, to secure cooperation on counterterrorism and counternarcotics trafficking operations, and to obtain desired outcomes in international bodies on priorities such as nuclear nonproliferation, among other important U.S. interests. Together with the other recently enacted state immigration laws, H.B. 56 is already complicating the U.S. efforts to pursue such interests. H.B. 56's impact is liable to be especially acute, moreover, not only among the U.S. critical partners in the region but also among the U.S. many important democratic allies worldwide, as those governments are the most likely to be responsive to the concerns of their constituents and the treatment of their own nationals abroad.

• Third, H.B. 56 threatens to undermine the U.S. standing in regional and multilateral bodies that address migration and human rights matters, and to hamper the U.S. ability to advocate effectively for the advancement of human rights and other U.S. values. Multilateral, regional, and bilateral engagement on human rights issues and international promotion of the rule of law are high priorities for the United States. Consistency in U.S. practices at home is critical for us to be able to argue for international law consistency abroad. By deviating from national policy in this area, H.B. 56 may place the United States in tension with the U.S. international obligations and commitments, and compromise the U.S. position in bilateral, regional, and multilateral conversations regarding human rights.

10. Furthermore, when H.B. 56 is considered in the context of the unprecedented surge in state legislative efforts to create state-specific immigration enforcement policies, each of these threats is significantly magnified, and several additional concerns arise.

• First, by creating a patchwork of immigration regimes, states such as Alabama make it substantially more difficult for foreign nationals to understand their rights and obligations, rendering them more vulnerable to discrimination and harassment.

• Second, this patchwork creates cacophony as well as confusion regarding U.S. immigration policy, and thereby undermines the United States' ability to speak with one voice in the immigration area, with all its sensitive foreign policy implications.

• Third, this patchwork fosters a perception abroad that the United States is becoming more hostile to foreign nationals, corroding a reputation for tolerance, openness, and fair treatment that is critical to the U.S. standing in international and multinational fora, the U.S. ability to attract visitors, students, and investment from overseas, the U.S. influence in a wide range of transnational contexts, and the advancement of the U.S. economic and other interests.

Developments

11. In light of these broad, overlapping, and potentially unintended ways in which immigration activities can adversely impact the U.S. foreign affairs, it is critically important that national immigration policy be governed by a uniform legal regime, and that decisions regarding the development and enforcement of immigration policy be made by the national government. In all matters that are closely linked to U.S foreign relations, including immigration, the United States is constantly engaged in weighing multiple competing considerations and choosing among priorities in order to develop an overall foreign policy strategy that will most effectively advance U.S. interests and values. The United States likewise is constantly seeking the support of foreign governments, through a delicately navigated process, across the entire range of U.S. policy goals. Only the federal government has the international relationships and information, and the national mandate and perspective, to be able to appropriately evaluate these choices on a continuing basis in response to fluctuating events on the world stage. The proliferation of state laws advancing state-specific approaches to immigration enforcement represents a serious threat to the national control over immigration policy that effective foreign policy demands.

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12. While particular state enactments that incidentally touch on immigration may not implicate foreign affairs concerns or may implicate them only slightly, Alabama's law H.B. 56, even when considered in isolation, more directly and severely impacts U.S. foreign affairs interests by establishing an alternative immigration policy of multiple, interlinking procedural and criminal provisions, all of which manifest Alabama's intention to create a separate regulatory regime and to influence immigration enforcement nationwide. Alabama's effort to set its own immigration policy is markedly different from instances in which states and localities assist and cooperate with the federal government in the enforcement of federal immigration laws. Such a cooperative approach greatly diminishes the likelihood of conflicts with U.S. foreign policy interests. When states and localities work in concert with the federal government, and take measures that are coordinated with federal agencies and in line with federal priorities, the United States retains its ability to speak with one voice on matters of immigration policy, which in turn enables it to keep control of the message it sends to international audiences and to calibrate responses as it deems appropriate, in light of the ever-changing dynamics of foreign relations.

13. In contrast, H.B. 56 pursues a singular policy of criminal enforcement at all costs through, among other things, an extraordinary mandatory verification regime coupled with the effective state criminalization of unlawful presence and numerous other mutually reinforcing sanctions. By so doing, the law has the capacity to cause harassment of foreign nationals; to provoke retaliatory treatment of U.S. nationals overseas; to weaken public support among key constituencies abroad for cooperating with the United States; to endanger the U.S. ability to negotiate international arrangements and to seek bilateral, regional, or multilateral support across a range of economic, human rights, security, and other non-immigration concerns; and to be a source of ongoing criticism in international fora. Alabama's effort to set its own immigration policy conflicts with numerous U.S. foreign policy interests and with the United States' ability to speak with one voice in this sensitive area.

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34. H.B. 56 broadly threatens the national government's primacy in setting immigration policy and ensuring that, when the federal government has spoken, its word has weight and can be trusted by the international community. The Alabama law conflicts with or undermines a number of specific foreign policy positions of the United States, including: (1) that we do not ordinarily impose criminal sanctions or other punitive measures on foreign nationals solely for unlawful presence; (2) that we abide by norms of mutuality, hospitality, and respect, as well as the principle of uniformity, in crafting and enforcing the U.S. immigration rules; and (3) that we honor the U.S. international legal, political, and moral commitments to protect the human rights of migrants. Foreign governments rely on these policies, and trust that we will treat their nationals accordingly; the United States, in turn, has the credibility and leverage to demand the same. It is because the international community perceives laws like H.B. 56 as reneging on these stated policy positions, which guarantee aliens are not, for example, subjected to legislated homelessness or put in prison solely for seeking work, that so many foreign governments have expressed their displeasure at such laws, and may retaliate in kind. This kind of grievance tarnishes the United States' image and reduces the U.S. ability to engage in foreign policy on numerous fronts.

Alabama in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Subsequent to Arizona's enactment of S.B. 1070, several other states enacted similar laws directed at immigrants who may be present in those states unlawfully. On August 1, 2011, the United States filed a complaint in the U.S. District Court for the Northern District of Alabama, seeking:

to declare invalid and preliminarily and permanently enjoin the enforcement of various provisions of House Bill 56, as amended and enacted by the State of Alabama, [(“H.B. 56”)] because those provisions are preempted by federal law and therefore violate the Supremacy Clause of the United States Constitution.

Complaint ¦ 1, United States v. Alabama (N.D. Ala. 2011), available at (internet link) justice.gov/opa/documents/complaint-us-v-alabama.pdf.

Developments

As explained in the U.S. complaint, H.B. 56 is “sweeping” in its reach and seeks, among other things:

to punish unlawful entry and presence by requiring, whenever practicable, the determination of immigration status during any lawful stop by the police where there is 'reasonable suspicion' that an individual is unlawfully present, and by establishing new state punitive and criminal sanctions against unlawfully present aliens.

Complaint ¦ 3.

The United States argued that various provisions of the Alabama law, reflecting the law's “enforcement-at-all-costs approach,” Complaint ¦5, impermissibly interfere with federal immigration authority in several interrelated respects:

H.B. 56 conflicts with and otherwise stands as an obstacle to Congress's demand for sufficient flexibility in the enforcement of federal immigration law to accommodate the competing interests of immigration control, national security and public safety, humanitarian concerns, and foreign relations—a balance implemented through the supervision and policies of the President and various executive officers with the discretion to enforce the federal immigration laws. See 8 U.S.C. § 1101 et seq. Enforcement of H.B. 56 would also effectively create state crimes and sanctions for unlawful presence despite the exclusive federal control over the consequences for unlawful presence and Congress's considered judgment to establish civil removal—and not criminalization or other punitive sanction—as the exclusive consequence of unlawful status. Alabama's punitive scheme would further undermine federal foreign policy, in that the federal government has—as a matter of mutual understandings—established that unlawfully present foreign nationals (who have not committed some other violation of law) should be removed without criminal sanction or other punitive measures and that the same treatment should be afforded to American nationals who are unlawfully present in other countries. H.B. 56 would thus interfere with federal policy and prerogatives in the enforcement of the immigration laws, and with the administration and enforcement of U.S. education laws.

Details

Complaint ¦ 36.

Along with its motion for a preliminary injunction in this case, the United States submitted a declaration by Deputy Secretary of State William J. Burns, dated July 29, 2011, which discussed the United States' foreign policy concerns about H.B. 56 and comparable state laws. Deputy Secretary Burns' declaration is excerpted below and available in full at (internet link) state.gov/s/l/c8183.htm. The district court granted the United States' motion for a preliminary injunction in part on October 13, 2011. United States v. State of Alabama, 2011 WL 4469941 (N.D. Ala.). The U.S. Court of Appeals for the Eleventh Circuit also granted in part the United States' motion for an injunction pending appeal. United States v. State of Alabama, 443 Fed. Appx. 411, 2011 WL 4863957 (11th Cir. 2011).

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5. … U.S. federal immigration law incorporates foreign relations concerns by providing a comprehensive range of tools for regulating entry and enforcement. These may be employed with sensitivity to the spectrum of foreign relations interests and priorities of the national government. By contrast, Alabama law H.B. 56 establishes an inflexible, state-specific immigration enforcement policy based narrowly on criminal sanctions that is not responsive to these concerns, and that unnecessarily antagonizes foreign governments. If allowed to enter into force, H.B. 56 would result in lasting harm to U.S. foreign relations and foreign policy interests.

6. Through the Immigration and Nationality Act (“INA”) and other federal laws, the national government has developed a comprehensive regime of immigration regulation, administration, and enforcement, in which the Department of State participates. This regime is designed to accommodate complex and important U.S. foreign affairs priorities—including economic competitiveness and trade, humanitarian and refugee protection, access for diplomats and official foreign visitors, national security and counterterrorism, criminal law enforcement, and the promotion of U.S. human rights policies abroad. To allow the national government flexibility in addressing these concerns, the INA provides the Executive Branch with a range of options governing the entry, treatment, and departure of aliens. Moreover, foreign governments' reactions to immigration policies and the treatment of their nationals in the United States impacts not only immigration matters but also any other issue on which we seek cooperation with foreign states, ranging from investment protection to tourism to defense. These foreign relations priorities and policy impacts are ones to which the national government is sensitive in ways that individual states are not.

7. By rigidly imposing a singular form of immigration enforcement through mandatory verification of immigration status and criminal enforcement of alien registration, H.B. 56 interferes with the national government's carefully calibrated policy of immigration regulation. The Alabama law also uniquely burdens foreign nationals by regulating, and in many cases criminalizing, work, travel, housing, contracting, and educational enrollment well beyond any restrictions imposed by U.S. law. These multiple, interlinking procedural and criminal provisions, adopted to supplant the federal regime and deter unlawfully present aliens from entering or residing in the State of Alabama, all manifest Alabama's intention to regulate virtually every aspect of those aliens' lives and to influence immigration enforcement nationwide. H.B. 56 thereby undermines the diverse immigration administration and enforcement tools made available to federal authorities, and establishes a distinct state-specific immigration policy, driven by an individual state's own policy choices, which risks significant harassment of foreign nationals, is insensitive to U.S. foreign affairs priorities, and has the potential to harm a wide range of delicate U.S. foreign relations interests.

Alabama

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Environment, Transnational Scientific Issues

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Protection of Marine Environment and Marine Conservation

. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Air Pollution from Ships: IMO Adoption of Efficiency Standards

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See Also

• Foreign Relations
• Constitutionality
• Immigration