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South Carolina is expected to learn by year's end whether its tough new immigration law will be sidelined indefinitely while legal wrangling over the measure continues.
After nearly three hours of spirited arguments in the case Monday, U.S. District Judge Richard Gergel said he would rule by Dec. 31 on whether to grant an injunction blocking the law from taking effect on New Year's Day.
In front of a packed courtroom in Charleston, Gergel peppered state lawyers and their opponents with questions surrounding the constitutionality of the new law and its possible effects on the nation's relations with other countries.
From his line of questioning and comments to lawyers, it appears unlikely that Gergel will move to block the law in its entirety. Rather, he is focused on key provisions that opponents contend would put the state at odds with federal law.
Gergel said he believes state lawmakers acted in good faith in passing the measure, but he has deep concerns over its ramifications here and abroad.
"I think they were trying to do good, and I think they consciously believe they were doing the right thing," he said from the bench. "But the question is: Can they supplant the nation's role on immigration and have the whole nation suffer the consequences?"
Gergel began the proceeding by granting a motion to remove Charleston County Sheriff Al Cannon and 9th Circuit Solicitor Scarlett Wilson as defendants in the case, a move that will likely save the county thousands of dollars in legal bills. Gergel then denied the state's request to put aside the legal challenges to the law until the U.S. Supreme Court can rule on a similar law passed in Arizona.
State attorneys had argued that it would be more prudent to wait and see what the high court does. But if the South Carolina law violates people's civil rights, as opponents claim, "even a day of violation is too long, is it not?" Gergel said.
The new law, passed in June, would greatly expand the state's role in policing immigration within its borders. Among other things, the measure will require local police to ask someone about their immigration status after an arrest or traffic stop, although they couldn't hold anyone on the sole grounds of suspicion of being in the country illegally. It also requires police to call federal immigration officials if they suspect someone of being in the country illegally.
Civil rights groups oppose law
The American Civil Liberties Union and a coalition of civil rights organizations, labor groups and individuals filed suits challenging the law in October. The federal government, via the U.S. Justice Department, also is suing the state to block the law.
Andre Segura, staff attorney for the ACLU's Immigrant Rights Project, said the law, which makes it a crime to harbor oneself as an illegal alien, is an attempt to go beyond federal law and criminalize what is presently a civil violation. It would likely lead to racial profiling and civil rights violations, he said.
Arthur Goldberg, a senior Justice Department attorney, argued that the state's law seeks to usurp the federal government's constitutional power to set and enforce immigration law. This breeds confusion, interferes with foreign policy and risks changing the way our citizens are treated overseas, he said.
"This prevents us from speaking with one voice to the rest of the world, which is important," he said. "The states are valued partners in respect to immigration. But under the federal scheme, they are not equal partners. You cannot go your own route."
The law also risks subjecting foreign visitors and legal immigrants to harassment and detention if they cannot readily produce paperwork to satisfy local authorities, Goldberg said.
Gergel noted that various missionaries, victims of torture, asylum seekers are in the country lawfully and with the government's knowledge, but they might well lack the proper paperwork to comply with the South Carolina law.
"Someone's seeking asylum because he's being tortured in his own country ... and we're going to pull him over on the way to Piggly Wiggly and throw him in jail?" he asked.
State felt action was needed
S.C. Assistant Deputy Attorney General Emory Smith defended the new law, saying it is the state's contention that the measure is both necessary and constitutional. He said the measure is generally consistent with federal law and shored up areas where the state felt federal laws were lacking.
"Obviously, the state of South Carolina thought not enough was being done, so it passed this law," he said.
State attorneys also argued that the federal government doesn't have the statutory authority to sue in this case. Gergel scoffed at that position, saying the feds clearly had a compelling interest in the case on several levels.
Gergel had more issues with some provisions of the law than others. He saw advantages, for instance, in requiring the State Law Enforcement Division to sign onto a program that trains police and jailers to enforce federal immigration laws, as is already done in several counties, including Charleston.
But the judge seemed uneasy with the notion of what he called "traffic dragnets" that would greatly expand the pool of people under scrutiny, likely straining local and federal resources to detain "low-priority" aliens. He questioned whether that goes against the federal government's strategy of focusing on gang members, terrorists and other dangerous criminals.
Earlier on Monday, more than 100 people turned out to Washington Park near Charleston City Hall to show support for throwing out the state's immigration law.
A mix of people -- old, young and from different ethnic backgrounds -- milled about, shouting slogans and carrying signs. A group of children chanted, "Born in the USA/Don't take my mommy and daddy away."
"It's important that we stop this law," said Mario Martinez, a member of the Lowcountry Immigration Coalition. "It's going to hurt a lot of people, and we don't see any need for this in a state like South Carolina, given the economic shape that it's in."
Victoria Salcedo, who moved to Johns Island from Mexico 18 years ago, is a legal resident and works for a cleaning service. She said she's not personally at risk but knows people who worry about their families being torn apart and others who already moved to other states because of law.
"I am legal, but we really need to support people who don't have any papers," Salcedo said. "We need to work together to find a way to stop this law."
Reach Glenn Smith at 937-5556 or Twitter.com/glennsmith5.