[Posted July 23, 2013] The Fourth Circuit today affirms the grant of an injunction against the State of South Carolina and its Governor, prohibiting enforcement of that state’s immigration law. Today’s decision in US v. South Carolina follows on the heels of last year’s SCOTUS ruling in Arizona v. US, where that state, evidently growing tired of waiting for the federal government to protect its border with Mexico, enacted its own laws regarding illegal aliens. As you may recall, that didn’t end too well for the state, as the Supreme Court ruled that immigration was the feds’ turf.


Those people who, like me, pay careful attention to geography will note that South Carolina doesn’t have a border with Mexico, or with any other foreign nation. That didn’t stop our Palmetto brethren and sistren from passing a law making it a crime for an illegal alien to shelter himself, or allow himself to be transported within that state. The same statute made it a crime for any other person to shelter or transport an illegal alien. Aliens were required to carry an ID card, upon pain of prosecution; the law also criminalized the possession of a fake ID.


After turning aside the state’s argument that the federal courts should abstain from the case, the Fourth today finds that the state law runs afoul of two preemption doctrines, both based on the Supremacy Clause. There’s a discussion of field preemption, where the federal government regulates a given area “so pervasively that there is no room left for the states to supplement federal law”; and of conflict preemption, where the state law actually conflicts with federal law. In that instance, you all know which side has to yield.


Judge Agee, writing for a unanimous panel, notes that the statute criminalizes “mere presence” in the state, contrary to the prohibition in last year’s Arizona decision. South Carolina had argued that it didn’t, since there was always some specific proscribed activity in each section. But the court today finds that unpersuasive:


We are hard-pressed to see how an unlawfully present alien, going about her normal daily life, would be able to avoid violating Sections 4(A) and (C) of the Act. Simply staying in one’s home could be viewed as an attempt to “shelter” oneself from detection. Taking a bus or driving home at the end of the workday would be “transport[ing]” oneself to the shelter of one’s home to avoid detection.


You have to admit, if you can be prosecuted for moving and prosecuted for sitting still, it’s pretty hard to avoid trouble.