The Department of Justice filed this suit against the State of South Carolina on October 31, 2011, in the U.S. District Court for the District of South Carolina, Charleston Division, challenging South Carolina's recently passed immigration bill, Act 69. Like private plaintiffs in a suit filed several weeks earlier (see Lowcountry Immigration Coalition v. Haley [IM-SC-0001]), the government challenged Sections 4, 5 and 6 of the Act, which require state and local law enforcement officers to investigate the immigration status of any individual they stop, detain, or arrest whenever they have a “reasonable suspicion” that the individual lacks immigration status, allow law enforcement officers to arrest individuals solely for failing to carry registration documents, and make it a crime to harbor or transport an undocumented immigrant or to be harbored or transported if one is an undocumented immigrant. Unlike the private plaintiffs, the government also challenged Section 15, which makes it a crime to create or repeatedly use a false identification, and did not challenge Section 1, which imposes civil liability on the police for failing to enforce the provisions of the Act to the maximum extent possible. The government claimed that the sections it challenged were preempted under the Supremacy Clause as an intrusion into the exclusively federal sphere of immigration, and preempted specifically by the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq. It sought a declaration that they were unconstitutional and an injunction barring their enforcement.
(In passing Act 69, South Carolina joined Utah, Indiana, Georgia and Alabama in enacting immigration laws similar to Arizona’s Senate Bill 1070. For the case challenging the Arizona law, see United States v. Arizona (IM-AZ-0015); for the case challenging Utah’s HB 497, see Utah Coalition of La Raza v. Herbert (IM-UT-0002); for the case challenging Indiana's SEA 590, see Buquer v. City of Indianapolis (IM-IN-0002); for the case challenging Georgia’s HB 87, see Georgia Latino Alliance for Human Rights v. Deal (IM-GA-0007); and for cases challenging Alabama’s HB 56, see United States v. Alabama (IM-AL-0005), Hispanic Interest Coalition v. Bentley (IM-AL-0006), and Parsley v. Bentley (IM-AL-0007).)
After a joint hearing on motions for summary judgment by the Department of Justice and by private plaintiffs in Lowcountry Immigration Coalition v. Haley (IM-SC-0001), on December 22, 2011, the Court (Judge Richard M. Gergel) issued an order in large part granting both motions. United States v. South Carolina, No. 2:11-cv-02958, 2011 WL 6973241, 2011 U.S. Dist. LEXIS 151549 (D.S.C. Dec. 19, 2011). It enjoined Sections 4, 5 and 6 of the Act, but did declined to enjoin Section 15, as it found that the government had not made a clear showing it would suffer irreparable harm if the section were enforced.
Defendants appealed to the Fourth Circuit, but the case was stayed until the Supreme Court issued its decision in United States v. Arizona (IM-AZ-0015), which dealt with a very similar statute in Arizona. That occurred in June 2012, 132 S.Ct. 2492 (2012); the Court struck down much of the Arizona statute, but declined to facially review the "show me your papers" provision. Shortly thereafter, the Court of Appeals issued a "limited remand" in this matter, directing the district court to decide in the first instance if its order should be adjusted in light of the Arizona opinion.
On November 27, 2012, the district court left in place most of its prior preliminary injunction, again the sections of the law that aimed to criminalize unlawful presence and giving a ride or renting an apartment to an undocumented immigrant. But the district court followed the Supreme Court's lead on the "show me your papers" provision. It noted: "This litigation is only at the preliminary injunction stage, and this Court’s decision to dissolve the injunction regarding these status-checking provisions does not foreclose a future as-applied challenge based upon subsequent factual and legal developments. In the course of this litigation, the parties will have the opportunity to conduct discovery regarding the actual practices and procedures associated with the implementation of Sections 6(A) and 6(C)(1), and this Court can then address these issues with the benefit of a full record."Christopher Schad - 11/29/2012