The good news in today’s Eleventh Circuit order temporarily enjoining parts of Alabama’s draconian anti-immigrant law is that the provision requiring public schools to determine the immigration status of public school students is blocked until the appeals court has the opportunity to give the case a full hearing. The bad news is that it still left much of the law in place — including a provision that has actually made it a felony for undocumented immigrants to have water in their homes. So the law in Alabama is better today than it was yesterday, but some of the very worst provisions of the law are still in effect. Worse, although the schools provision is now suspended, it may already have successfully and permanently intimidated thousands of Alabama school children against attending school.
Although the court’s order is a respectable 16 pages, it focuses almost entirely upon summarizing Alabama’s law and explaining the history of the case and contains virtually no legal analysis whatsoever. Accordingly, it is impossible to know why the judges decided to block some parts of the law and not others. Nevertheless, there are a few useful observations to be made about the three judge panel that heard the case and their decision.
First, this is a very conservative panel. Although the panel did include one genuinely liberal judge — Judge Rosemary Barkett — its majority includes two solid conservatives. Before joining the court, Judge Edward Carnes was one of the nation’s top death penalty advocates. He wrote Alabama’s death penalty statute and defended it before the Supreme Court three times. To be fair, Carnes has not behaved as a kneejerk ideologue — he is probably most famous for being one of the appeals court judges that affirmed a lower-court decision requiring Alabama Chief Justice Roy Moore to remove a giant Ten Commandments monument. But the Ten Commandments case also wasn’t even a close call under then-existing Supreme Court precedents.
The panel’s third judge, Judge Frank Hull, is even more aggressive in her conservatism. Hull was one of two judges that butchered nearly 200 years of precedent to strike down part of the Affordable Care Act. The fact that even she found Alabama’s schools law to be unacceptable is a very good sign that the law will ultimately be struck down.
Second, there is also some potentially bad news regarding the provision preventing state agencies — including state-run water services — from conducting business with undocumented immigrants. Judge Barkett is a very liberal judge, and she wrote a separate opinion indicating that she would block more of the law than Carnes and Hull. Nevertheless, even she agreed that the provision preventing people without documents from getting water service in their homes should not be enjoined.
Although this is bad news, it is not the end of the world. As the court explains, to obtain an injunction at this early stage of the appeal, the plaintiffs have to overcome a very heavy burden:
We grant the “extraordinary remedy” of an injunction pending appeal only if the petitioners can show “(1) a substantial likelihood that they will prevail on the merits of the appeal; (2) a substantial risk of irreparable injury…(3) no substantial harm to other interested persons; and (4) no harm to the public interest.”
It is possible that Barkett — or, for that matter Carnes and Hull — believe that the entire law is illegal but nonetheless thought that the contracts provision wasn’t going to cause any “irreparable” harm. Moreover, the panel that will hear the case on full appeal will not be the same panel that issued this order. Nevertheless, Barkett’s unwillingness to block the whole law is a cause for concern, if not alarm.
Finally, even if the whole law is eventually struck down, the damage may already be done. The reason why the schools provision is so offensive is because very few undocumented families will send their children to public school if the school is collecting data on whether or not they should be deported. The law is nothing less than an effort to intimidate children against exercising their constitutional right to public education, and it has been very successful. Thousands of students stopped showing up to school the minute this law went into effect.
The law is now suspended, but every single child who didn’t attend school during the brief period it was in effect may as well have the words “illegal immigrant” tattooed across their face in scarlet letters. It is likely that many of them will never return to school again.