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United States v. South Carolina, Nos. 12-1096, 12-1099, 12-2514, 12-2533

Decided:  July 23, 2013

The Fourth Circuit held that, under the Supremacy Clause, the Lowcountry Immigration Coalition (“the Coalition”) had an implied right of action allowing them to seek enjoinment of South Carolina’s Act 69 (“the Act”) on the grounds of federal preemption; that the United States District Court for the District of South Carolina properly chose not to abstain from hearing the case; and that the district court properly enjoined certain sections of the Act a in a pre-enforcement challenge.  The Fourth Circuit therefore affirmed the decision of the district court.

The governor of South Carolina signed the Act in 2011, thereby approving certain state immigration laws and regulations.  Subsections 4(A) and (C) provide that unlawfully present immigrants commit a state felony if, inter alia, they allow themselves to be either transported within the state, or to be harbored or concealed to avoid detection, with the intent to further their unlawful entry into the country or to avoid apprehension or detection.  Under subsections 4(B) and 4(D), it is a state felony for a person to conduct the transportation or concealment offenses listed in Subsections 4(A) and (C).  Under Section 5, it is a state misdemeanor for a person over seventeen years old to fail to carry certain alien registration materials issued to the person under 8 U.S.C. § 1304.  Subsection 6(B)(2) forbids the display or possession of counterfeit or false identification “for the purpose of offering proof of the person’s lawful presence in the United States”; a first violation of this subsection is a misdemeanor, and a second violation is a felony.

The United States and the Lowcountry Immigration Coalition (“the Coalition”) challenged certain sections of the Act in two separate actions.  The district court consolidated the cases, and found that Sections 4, 5, 6(B)(2), and other subsections of Section 6 were preempted by federal law.  The district court issued a preliminary injunction, and South Carolina appealed.  The Fourth Circuit remanded the case to the district court for reconsideration due to the Supreme Court’s decision in Arizona v. United States, 132 S. Ct. 2492.  On remand, the district court let its injunction of Sections 4, 5, and 6(B)(2) stand, and dissolved its injunction of the other subsections of Section 6.  On an interlocutory appeal to the Fourth Circuit, South Carolina argued that the Coalition did not have a right of action under the Supremacy Clause or 42 U.S.C. § 1983, citing Chief Justice Roberts’s dissent in Douglas v. Independent Living Center of Southern California, Inc., 132 S. Ct. 1204, as support for its Supremacy Clause argument; asserted that the district court should have abstained from hearing the case under Younger v. Harris, 401 U.S. 37; and challenged the district court’s preliminary injunction.

The Fourth Circuit found that the Douglas dissent did not disturb prior Supreme Court and circuit court holdings allowing parties to seek injunctive relief on the grounds of federal preemption.  The Fourth Circuit also found Younger abstention inapplicable, as South Carolina had not actually commenced criminal proceedings under the Act.  Lastly, the Fourth Circuit concluded that federal law preempted all of the disputed sections of the Act.  The Fourth Circuit found that Subsections 4(A) and (C) criminalized mere unlawful presence, in contradiction of federal laws defining unlawful presence as a civil offense; that Subsections 4(B) and (D) infringed on a field occupied by the Immigration and Naturalization Act, which defines, inter alia, certain harboring and transportation offenses; that Section 5 infringed on the federal government’s regulation of alien registration; and that Subsection 6(B)(2) was preempted by both field preemption and conflict preemption, as Congress passed multiple laws regarding fraudulent immigration documents, and enforcement of these federal statutes would conflict with enforcement of Subsection 6(B)(2).

Full Opinion

– Stephen Sutherland