INDIANAPOLIS, Ind. — Indiana Attorney General Greg Zoeller believes parts of Indiana’s immigration law most likely can’t be enforced.

He says the U.S. Supreme Court decision to strike down parts of Arizona’s law makes it clear Indiana’s measures dealing with warrantless arrests for immigration violations are unconstitutional.

Portions of Senate Enrolled Act 590, Indiana’s immigration law that is now under legal challenge, are preempted, or overridden, by federal law, Zoeller said.

“The Supreme Court made clear that immigration enforcement is a federal government responsibility. States are frustrated by the unwillingness of the executive branch to enforce current immigration laws and inability of Congress to make reforms. As Indiana’s Attorney General, I had an obligation to defend this Indiana statute passed prior to the recent Arizona decision, but I have sworn to uphold the Constitution and my legal conclusion now is that certain portions of the state law cannot stand,” Zoeller said.

Shortly after the Legislature passed Senate Enrolled Act 590 into law in 2011, the ACLU plaintiffs filed a legal challenge to it, Buquer v. Indianapolis, in U.S. District Court for the Southern District of Indiana, in Indianapolis. The plaintiffs in June 2011 obtained a preliminary injunction that blocked two challenged portions of the law from taking effect. As lawyer for the State, the Attorney General’s Office defended the statute from the challenge.

Senate Enrolled Act 590 permitted local officers to make warrantless arrests based on immigration court removal orders, federal notice-of-action forms, 48-hour detainer requests or for being a foreign person who was indicted or convicted of an aggravated felony. The U.S. Supreme Court recently struck down as unconstitutional similar language in Arizona’s law. Because that is now the binding legal precedent, similar portions in Indiana’s law with one exception cannot remain standing either, Zoeller said.

In the State’s legal brief filed today in the Buquer case, Zoeller recommended the U.S. District Court strike down three of the four warrantless arrest provisions of the law that the Supreme Court has now said are unconstitutional. (The exception: Other statutes already allow local police to confine someone on a detainer for 48 hours at a federal agency’s request.)

SEA 590 also contains a provision making it an infraction in Indiana to use or accept a foreign nation’s consular identification card as ID for any public or private purpose. This portion, which the ACLU plaintiffs also challenged, remains under the U.S. District Court’s preliminary injunction of June 2011. The U.S. Supreme Court ruling in the Arizona case was silent on the use of consular ID cards. Zoeller said consular ID is a unique issue but since the Arizona decision does not apply to it, Indiana’s recommendation is that the State should have the right to define what identification is reliable and acceptable for government purposes, including licensed occupations. Indiana will leave it up to the federal court to decide the issue in the Buquer case.

The Attorney General’s Office operates the state’s Identity Theft Unit in the Consumer Protection Division. Given the concern that consular ID could be forged and used to commit fraudulent transactions, Zoeller also said he also will recommend the 2013 Legislature revise that part of the statute to improve its effectiveness.

In the Buquer case, the U.S. District Court permitted each side additional time to file legal briefs to take into account the June 25 ruling in the Arizona case. With the filing of the State’s response brief today, the State’s litigation in the Buquer case is now largely concluded and the Attorney General’s Office will await a ruling from the federal district court.

“My office has defended the Indiana law the Legislature has passed from the legal challenges the plaintiffs filed for as long as possible. But once the U.S. Supreme Court struck down the Arizona law, its decision is final; and we should defend the challenged portions only when we have a good-faith basis to do so. To disregard the Supreme Court’s guidance would not serve justice and would not be a good use of taxpayer resources, since the State could be ordered to pay the challenger’s attorneys fees,” Zoeller said.

Separately, the Attorney General’s Office also is defending a second legal challenge to SEA 590, Union Benefica Mexicana v. State, in the U.S. District Court for the Northern District of Indiana in Hammond. Those plaintiffs challenged different provisions of SEA 590 that allow the State to sue employers who employ illegal workers to recoup unemployment benefits, and require that individuals seeking day-labor jobs complete individual attestation of employment forms. SEA 590 says that if police have probable cause to believe an individual has not completed this form, they are required to submit a complaint to the U.S. Immigration and Customs Enforcement (ICE) office.

The federal court stayed the Union Benefica Mexicana case after the plaintiffs filed suit so the State does not have the opportunity to respond, and that court has issued no injunction. Zoeller noted the two provisions being challenged here already satisfy the requirements of the Supreme Court’s Arizona decision and so his office will continue to defend SEA 590 in that case.

Still other provisions of SEA 590 were not challenged in either the Buquer or Union Benefica Mexicana lawsuits. E-Verify is a federal database familiar to many businesspeople. Under SEA 590, if a company wishes to do business with the State, it must use the federal E-Verify database to establish that its employees are eligible to work. The Supreme Court did not address E-Verify in the Arizona case, and in a separate case the Supreme Court has said states are permitted to require such employer verification. Zoeller said there is no legal obstacle to the State requiring state contractors to use E-Verify.

Emphasizing the State’s lawyers have devoted much time and effort into vigorously defending SEA 590, Zoeller said he will advise law enforcement and Legislature on how next to proceed.

“The people’s elected representatives in the Indiana General Assembly made a sincere effort to respond to local concerns about illegal immigration when they were faced with the federal government’s dereliction of its responsibility. Whatever its flaws, this Indiana legislation was not an ‘anti-immigrant’ bill, it was an anti-illegal-immigration bill, focused on process, not individuals, and it was consistent with Hoosiers’ decency and their respect for the Constitution and the basic rights of all people. The states are the victims of federal inaction, and I call upon those in Washington DC to fulfill their duties and stop putting states in the difficult position of attempting to enforce immigration when the Supreme Court has said that is a federal government responsibility,” Zoeller said.

Source: Office of the Indiana Attorney General