On May 25, 2011, the American Civil Liberties Union (ACLU) and National Immigration Law Center (NILC) filed a class action lawsuit on behalf of three foreign residents of Indiana in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, against the cities of Indianapolis and Franklin and the counties of Marion and Johnson. The plaintiffs claimed that Section 19 of Indiana’s Senate Enrolled Act 590 (SEA 590), which allowed local law enforcement officers to make warrantless arrests of people who were subject to a removal order issued by an immigration court or a detainer or notice of action issued by the Department of Homeland Security (DHS), or who had been indicted or convicted of an aggravated felony, was preempted by federal law, constituted an unreasonable seizure under the Fourth Amendment, and a violation of due process under the Fourteenth. Plaintiffs also claimed that Section 18 of SEA 590, which made the use of consular identification cards for identification within the state a civil infraction punishable by fine, was preempted by federal law and in violation of the Fourteenth Amendment’s guarantee of due process. The plaintiffs sought declaratory and injunctive relief barring its enforcement before SEA 590 went into effect on July 1, 2011.
IRLI represented several Indiana state senators, who intervened in the litigation. Each senator supported SEA 590, an Indiana statute drafted with IRLI assistance that authorized state and local police to arrest an illegal immigrant when the officer has a removal order, a detainer issued by DHS, or has probable cause that the illegal immigrant has been indicted or convicted of an aggravated felony. IRLI was also involved in drafting the ban on official acceptance of the so-called “matricula” card, in Section 18. The senators sought to intervene as defendants on the ground that the then state attorney general did not support the legislation. The state senators argued that there is a presumption against federal law preempting state law and Congress did not clearly manifest the intention to preempt SEA 590. Indeed, the Indiana statute attempted to cooperate with federal regulations in the apprehension, detention and removal of illegal aliens under 8 U.S.C. § 1357(g)(10)(B). Finally, the senators argued that a challenge to its constitutionality was highly speculative because the bill had not been fully implemented by the state.