12/06/2011 01:58 pm ET Updated Feb 05, 2012

Sweet Home Alabama? Immigration and Civil Rights in the "New South"

In the coming weeks, the Supreme Court will likely decide whether to review the constitutionality of Arizona's high-profile immigration enforcement effort, known popularly as S.B. 1070. Arizona's law is simply the tip of the iceberg. State legislatures have passed immigration enforcement laws over the last few years at breakneck speed, and, generally speaking, have attempted to make life as uncomfortable as possible for undocumented immigrants. Controversy has ensued. The Arizona law received worldwide attention, international condemnations, and calls for an economic boycott of the state. Paradoxically, these state immigration laws come at a time when the Obama administration has aggressively pressed enforcement, setting all-time records for the removal of noncitizens from the United States, with nearly 400,000 people deported in fiscal year 2011.

Earlier this year, the Alabama legislature entered the fray by passing a tough-as-nails immigration law known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. The Alabama law builds on the controversial Arizona law but goes considerably further. Unsettling migration of Latinos to new destinations in the United States, combined with Congress's failure to improve an immigration system that commentators on both ends of the political spectrum vigorously condemn, led us to where we are today. Alabama is the latest state to act -- and act decisively it did.

I believe that the civil rights implications for immigrants and Latinos raised by the state immigration laws are in many respects similar to the civil rights issues raised by Jim Crow for African-Americans. This is true even though the current legal challenges to the U.S. government to the Alabama, Arizona, and Georgia laws center on federal preemption doctrine, as opposed to the Equal Protection Clause of the Fourteenth Amendment. The defense of current state laws eerily bring back memories of the "states' rights" defense of segregation.

It should be troubling that Alabama, ground zero in the civil rights movement of the 1960s, gave birth to the harshest immigration law to date. Many famous incidents in that state -- from Birmingham Police Chief Bull Connor unleashing fire hoses on peaceful civil rights marchers to Governor George Wallace proclaiming "segregation now, segregation forever" in his 1963 inaugural address -- remain indelibly imprinted on the national imagination. As in the days when segregationists championed "states' rights," we again hear objections to the intervention of the federal government as it attempts to defend immigrants' civil rights through lawsuits challenging state immigration laws. Alabama now risks going down in history for its intolerance toward undocumented immigrants and Latinos as well as African-Americans.

Importantly, the civil rights implications of immigration enforcement exist regardless of whether the states or the federal government takes charge. The Alabama law is startling in terms of its civil rights consequences to Latinos and immigrants, including increasing the likelihood of racial profiling, denying access to public education, and the like.

So where does this leave us? In my estimation, the United States, much as it was in the 1960s, is at a civil rights crossroads. Millions of immigrants and undocumented immigrants live in the United States. Employers value their labor. Consumers gain from lower prices. The economy as a whole benefits. But legally, the nation has been at best ambivalent about how to treat immigrants, especially undocumented ones, in the eyes of the law. Most fundamentally, what rights do they possess? We as a nation must address these civil rights questions. Until then, we can expect more turmoil in the states and, consequently, continued threats to the civil rights of immigrants and U.S. citizens of particular national origins.

At the same time, the rationale for enacting state laws regarding immigration enforcement crumbles if the U.S. Congress acts to reform basic U.S. immigration law in a meaningful way. Indeed, state political leaders have repeatedly emphasized that the states are acting because the Obama administration and Congress have failed to address immigration enforcement. As a co-sponsor of the Alabama immigration law stated,

[t]o me the federal government ignoring this problem is putting an unfunded mandate on the states. The federal government's job is to enforce immigration law. . . . We are hoping through this [law] that people who do need immigrant labor . . . will put pressure on Washington now to correct the broken immigration system.

Congress enacted the omnibus Immigration & Nationality Act in 1952, during the Cold War, and has only amended it on a piecemeal basis almost annually since then. The last major effort at anything approaching "comprehensive" immigration reform was in 1986 with the Immigration Reform and Control Act. If Congress could act to address the current issues of immigration, it could address the civil rights concerns afflicting immigrants today. Unfortunately, with a presidential election upcoming in 2012, it appears that immigration reform is dead in its tracks.

Read the full article, Sweet Home Alabama? Immigration and Civil Rights in the "New" South by Kevin R. Johnson, on the Stanford Law Review Online.