Earlier this year, Alabama Gov. Robert Bentley (R) signed the nation’s harshest anti-immigrant law — including provisions that intimidate undocumented children from attending school and which effectively make it a felony for many immigrants to take a shower in their own home. Much of this law has since been blocked by federal courts, but key provisions of the law are still in effect.
One provision that has yet to be struck down by a federal judge provides, with two exceptions, that “[n]o court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States.” In essence, it seeks to drive undocumented immigrants from the state by giving their landlords, employers, and other persons they do business with a free pass to exploit them. Federal judges have thus far allowed this provision to stand. Yet, as Alabama Circuit Judge Scott Vowell pointed out in an opinion yesterday, the anti-contracting provision still has to overcome a big obstacle — the Alabama state constitution’s command that
There can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement; and the legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.
Because Judge Vowell’s opinion deals with a breach of contract suit that was filed by an undocumented immigrant before the law took effect, his opinion merely holds that the anti-immigrant law cannot constitutionally be applied to those suits because “the legislature shall have no power to take away” people’s right to pursue contacts claims that are already pending. Nevertheless, Vowell also suggests that the entire anti-contracting provision may violate the state constitution’s requirement that no law may “destroy or impair[e] the remedy” for enforcing a contract in court.
Should the Alabama courts ultimately agree that the entire anti-contracting provision is unconstitutional under the state constitution, then the provision will cease to function even if the federal courts uphold it. State courts are allowed to apply state law independently of how federal courts handle questions of federal law.
In other words, it looks like Alabama’s assault on immigrants not only ignores the United States Constitution, it likely violates the Alabama Constitution as well.