On October 12, 2011, the ACLU, representing a slew of groups and individuals, filed a lawsuit against the State of South Carolina seeking to enjoin South Carolina Senate Bill 20 (“SB 20”).  Like lawsuits brought by the ACLU in Arizona, Utah, Georgia, Alabama and Indiana, this lawsuit seeks to prevent the State from enforcing its immigration law.

SB 20 is based on Arizona’s SB 1070 and Alabama’s HB 56 and contains similar provisions.  These provisions include:

  1. a ban on sanctuary policies,
  2. a state criminal provision for failing to comply with federal alien registration laws,
  3. a state harboring and transporting criminal provision based off of a similar federal harboring and transporting statute, 8 U.S.C. § 1324(a),
  4. a requirement that state and local officers verify an individual’s immigration status during a lawful stop for a criminal offense if the officer has a reasonable suspicion that the person is unlawfully present, and
  5. a requirement that jailers verify the immigration status of inmates with the federal government.

SB 20 also requires public and private employers to use E-Verify and penalizes employers who knowingly hire unauthorized aliens by suspending their business licenses.

The law, which is scheduled to go into effect Jan. 1, requires law enforcement officers to check the immigration status of anyone they detain, including people pulled over during traffic stops. It also creates a statewide Illegal Immigration Enforcement Unit that would be under the direction of the S.C. Department of Public Safety. The lawsuit charges that immigration is the responsibility of the federal government and the state is overstepping its bounds. It also says the law violates the U.S. Constitution’s 4th Amendment, which prohibits unlawful searches and seizures.

Similar lawsuits have been filed in other states that have immigration laws like South Carolina’s. However, federal judges have not been uniform in their rulings, meaning the issue likely will land before the U.S. Supreme Court.

In Arizona, a federal judge blocked a section of the state’s law that required police officers to check residents’ immigration status. But late last month a federal judge in Alabama upheld that state’s effort to allow police to check immigration status. Throughout the legislative process in South Carolina, advocates for immigrants’ rights argued that the immigration process is complicated and often people who have a right to be in the United States cannot present one identification card to prove it.

In response to the lawsuit, South Carolina Attorney General Alan Wilson expressed confidence in the law. “We have a strong opinion this law is constitutional and we’re prepared to defend it to the U.S. Supreme Court if we have to.” At this point, neither party has filed briefs nor has the Court issued an order indicating when briefs are due.  However, SB 20 is scheduled to take effect on January 1, 2012, it is likely that the ACLU will request a temporary injunction.