Can states pass immigration bills? Why Oklahoma's could violate federal law
Before federal immigrant deportations came into practice, colonial and state governments practiced expulsions – many of which had nothing to do with a migrant’s status but rather their membership or integration into a town or state.
Between the 1840s to 1870s, for example, U.S. citizens migrating to Massachusetts could find themselves expelled if they were poor, according to a historical analysis of immigrant deportations.
Building off states’ expulsion policies amidst an increase of Chinese migrant laborers, the Supreme Court ultimately declared federal responsibility over states in the regulation of immigrants in 1875.
Once the federal government began constructing its first deportation policies in the 1880s, The Chinese Exclusion Act of 1882, for example, provisions included those aimed at “idiots, lunatics, convicts, and persons likely to become a public charge.”
Today, deportation policies are not as narrow in scope. Today’s expanded class of deportable offenses now bears limits to the amount of discretion immigration judges have in preventing the deportation of a noncitizen.
Immigration policies, becoming more restrictive overtime, now involve an ensemble of federal agencies that effectively deported more than 142,000 people in 2023.
How do deportations work?
When a noncitizen faces removal or deportation, they typically receive a Notice to Appear before an immigration court by a United States Citizenship and Immigration Services officer to start a removal proceeding. The notice details the following:
The nature of the proceedings against the noncitizen
The legal authority under which proceedings are conducted
The acts or conduct alleged to be in violation of the law
The charges and statutory provisions alleged to have been violated
The date on which the noncitizen must appear before an immigration judge
Immigration court is under the Executive Office for Immigration Review – a sub agency under the U.S. Department of Justice.
Deportation proceedings consist of two court hearings: a master calendar hearing and then an individual merits hearing.
In a master calendar hearing, the immigration judge informs the defendant of the government’s alleged violations, their rights, and provides them an opportunity to respond.
During the following individual merits hearing, which operates like a trial, the government submits evidence to support a deportation order, and the defendant can also present their application for relief from removal.
Once the government and defendant conclude their arguments, the judge then issues a decision either granting the noncitizen relief from deportation or ordering removal.
This process allows noncitizens an opportunity to appeal their charges to the Board of Immigration Appeals with the help of an immigration attorney, if they can afford it. Undocumented individuals do not have the right to representation in removal proceedings because the proceedings are considered civil, not criminal.
Challenges to immigration laws created at the state level
While states have some freedom to determine immigration laws, they must do so under the parameters of the U.S. Constitution – the U.S. Supreme Court has consistently upheld the federal government's jurisdiction over immigration law.
For example, in April 2010, Arizona Gov. Jan Brewer signed into law the country’s strictest immigration legislation at the time. Before its original provisions were struck in a 2012 Supreme Court ruling and 2016 settlement with plaintiffs, Senate Bill 1070’s most controversial elements would have enlisted local police to enforce federal immigration laws by requiring them to check the status of anyone suspected of being in the U.S. illegally – a provision that worried several Arizona police officers in a lawsuit citing concerns over the law’s potential for abuse.
In the federal government’s challenge of S.B. 1070, a U.S. Department of Justice brief included the following statement: “Setting immigration policy and enforcing immigration laws is a national responsibility. Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.”
Ultimately, the Arizona law was challenged as violating the Supremacy Clause of the U.S. Constitution, which requires that federal law "preempts" (or trumps) state law.
Federal government files suit on Oklahoma over House Bill 4156
Twelve years later, Oklahoma now finds itself in a similar position as Arizona.
Gov. Kevin Stitt signed House Bill 4156 into law in April, and the federal government responded swiftly.
On May 23, the U.S Justice Department followed through on its threat to sue Oklahoma, saying that the new law was a violation of the U.S. Constitution.
“Oklahoma cannot disregard the U.S. Constitution and settled Supreme Court precedent,” Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division said in a statement announcing the lawsuit. “We have brought this action to ensure that Oklahoma adheres to the Constitution and the framework adopted by Congress for regulation of immigration."
The Justice Department had given Oklahoma five days to confirm it would not enforce the law, but state leaders responded with stout justifications for their actions. Drummond wrote the Biden administration has “only committed to subverting the immigration laws of this country.”
“Your misguided demands ignore that Oklahoma has not only the sovereign right, but also the solemn legal obligation, to protect its own borders and its own citizens,” he wrote. Drummond said he requested the legislation primarily to address illegal marijuana-grow operations.
He was adamant the law’s purpose was a “powerful tool to combat those foreign nationals … who become involved in serious criminal activity such as illegal marijuana-grow operations, fentanyl distribution, sex trafficking, and labor trafficking.”
The law was not meant to racially profile, Drummond said in the response, noting that the practice is illegal in Oklahoma, “To detain someone who looks, sounds or acts ‘foreign’ is itself un-American and will never be tolerated by this office.”
House Speaker Charles McCall said he found the federal government's position “laughable” and pointed out, “The Biden Administration’s continued failures to address the illegal immigration crisis in our country are what necessitated the passage of House Bill 4156 in the first place.”
The Speaker added the bill was a “carefully crafted, well-thought-out piece of legislation designed to acknowledge the role of the federal government in immigration matters, while at the same time protect the sovereignty and security of our state’s troopers.”
Members of the Latino Caucus told The Oklahoman they also plan to file suit against the law, citing similar points made in the Department of Justice’s letter.
Sen. Michael Brooks said he thinks it’s a new version of sundown laws that used to exist in the state.
“It seems to me that requiring people to leave the state of Oklahoma is akin to some our sundown statutes that, kind of shamefully, we had years ago where there would be a sign at the entrance of different towns that said no Blacks or Mexicans after dark,” he said. Those laws were found to be unconstitutional.
Brooks said the federal government’s response to the law confirms it is unconstitutional and an overreach into powers that have traditionally been reserved by the federal government.
He and Rep. Arturo Alonso-Sandoval, both Democrats with districts in Oklahoma City, said a lawsuit should be filed before the law takes effect on July 1. They’re working with national experts to find plaintiffs and file the lawsuit.
Just hours after Texas Gov. Greg Abbott signed Senate Bill 4 last December, the 5th Circuit Court of Appeals put a hold on the bill, stopping its enforcement. The Latino Caucus is hoping for a similar result in Oklahoma.
Civil rights groups are also challenging the law. The American Civil Liberties Union, and others, filed a federal lawsuit Thursday on behalf of Oklahoma-based organization Padres Unidos and an individual plaintiff.
“Friends, family members, neighbors, and community members will be pushed into harm’s way regardless of their immigration status, local resources will be unfairly strained, and constitutional due process rights will be trampled upon. Oklahoma should reject these efforts to divide their communities,” said Noor Zafar, an ACLU staff attorney who signed the lawsuit.
Oklahoma’s bill is a close second to Texas. Senate Bill 4 authorizes state and local police to detain and arrest people suspected of crossing the border illegally, and it also allows magistrate judges to order migrants to return to Mexico or face stiffer criminal penalties for noncompliance, according to the Austin American-Statesman. It also prohibits sanctuary cities that prohibit local law enforcement from inquiring about a person’s immigration status and complying with detainer requests, the Austin paper reported.
The law makes illegally crossing the border a Class B misdemeanor, punishable by up to six months in jail, and repeat offenders risk a second-degree felony, which carries a potential sentence of two to 20 years in prison, the Austin American-Statesman reported.
The Texas law has been challenged by the U.S. Department of Justice and immigration advocacy organizations, who point out the same issues as Oklahoma’s advocates did. The legislation is seen as superseding the federal government and potentially leading to racial profiling.
The Dallas Morning News reported the Dallas City Council could vote on a resolution that would condemn the law. The resolution would make clear the city doesn’t agree with it, but it would not impact the potential enforcement if it does take effect. It also makes mention of Dallas’ shortage of police officers and that enforcing the bill would strain police resources and negatively impact community relationships.
Oklahoma City Police Chief Wade Gourley said Oklahoma’s version would also negatively impact the connections they’ve built with migrant communities and place them at further risk. He said his department does not check immigration status and to do so for every person would be a huge burden.
This article originally appeared on Oklahoman: Why the Oklahoma immigration law HB 4156 might violate federal law
