Federal Preemption
Position
Regulating immigration is a federal prerogative. The Constitution, case law and the 1986 Immigration Reform and Control Act place the burden squarely on the U.S. Congress, not state and local governments.
In recent years, congressional inaction has led many state and local jurisdictions to take matters into their own hands. The resulting patchwork of laws and ordinances confuses employers and immigrants, impedes commerce and may be unconstitutional.
ImmigrationWorks USA supports passage of new federal legislation clarifying and strengthening federal supremacy in the making of immigration law. It also supports state legislation preempting local ordinances on immigration matters.
BACKGROUND
Article 7 of the U.S. Constitution - the Supremacy Clause - prohibits states and municipalities from passing laws at odds with federal statutes. The 1986 Immigration Reform and Control Act explicitly strengthened the federal prerogative over immigration law and sharply limited state and local authorities' ability to sanction employers who hire unauthorized foreign workers. The one exception: a seven-word parenthesis in the 1986 act gave states some leeway in using business licensing to regulate the hiring of immigrants - a loophole that has been widely exploited in recent years by states seeking to crack down on employers.
Business owners across the country have challenged this trend, arguing that states have gone further than the law or the Constitution permits. Cases from Arizona, Oklahoma, Farmers Branch, TX and Hazelton, PA are making their way through federal courts, and one or more is widely expected to reach the Supreme Court in coming years.
RESOURCES
Monica Guizar, National Immigration Law Center, "Facts About Federal Preemption," June 2007.
Montgomery, McCracken, Walker & Rhoads, "State/Local Enforcement Of Federal Immigration Law: Illegal And Impractical," February 2009.
American Immigration Lawyers’ Association, "Navigating The Immigration Debate: A Guide For State & Local Policymakers & Advocates," updated January 2009.
ImmigrationWorks USA, State Immigration Law.
In recent years, congressional inaction has led many state and local jurisdictions to take matters into their own hands. The resulting patchwork of laws and ordinances confuses employers and immigrants, impedes commerce and may be unconstitutional.
ImmigrationWorks USA supports passage of new federal legislation clarifying and strengthening federal supremacy in the making of immigration law. It also supports state legislation preempting local ordinances on immigration matters.
BACKGROUND
Article 7 of the U.S. Constitution - the Supremacy Clause - prohibits states and municipalities from passing laws at odds with federal statutes. The 1986 Immigration Reform and Control Act explicitly strengthened the federal prerogative over immigration law and sharply limited state and local authorities' ability to sanction employers who hire unauthorized foreign workers. The one exception: a seven-word parenthesis in the 1986 act gave states some leeway in using business licensing to regulate the hiring of immigrants - a loophole that has been widely exploited in recent years by states seeking to crack down on employers.
Business owners across the country have challenged this trend, arguing that states have gone further than the law or the Constitution permits. Cases from Arizona, Oklahoma, Farmers Branch, TX and Hazelton, PA are making their way through federal courts, and one or more is widely expected to reach the Supreme Court in coming years.
RESOURCES
Monica Guizar, National Immigration Law Center, "Facts About Federal Preemption," June 2007.
Montgomery, McCracken, Walker & Rhoads, "State/Local Enforcement Of Federal Immigration Law: Illegal And Impractical," February 2009.
American Immigration Lawyers’ Association, "Navigating The Immigration Debate: A Guide For State & Local Policymakers & Advocates," updated January 2009.
ImmigrationWorks USA, State Immigration Law.
News
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Latino Republican walking a tightrope in Nevada race
Sep 8, 2010 — Los Angeles Times
Several states, including Nevada, Colorado and Arizona, have grown more competitive in presidential elections as the Latino population swelled. A majority of Latinos initially supported the initiative. Latinos are about 12 percent of the electorate.Sandoval has taken to the Spanish-language airwaves to trumpet the historic nature of his candidacy. -
Rival says Texas attorney general's Arizona stance shows shift in his beliefs
Sep 8, 2010 — The Dallas Morning News
Abbott's brief does not express support for the substance of Arizona's law but rather the state's right to enforce it. -
'Birth tourism' a tiny portion of immigrant babies
Sep 3, 2010 — Associated Press Online
Constitutional changes require approval by two-thirds majorities in both chambers of Congress, an impossibility now because Democrats have the majority in both houses and most oppose such a measure. In border cities like Nogales, women have been coming to the U.S. for decades to give birth, although the primary reason is better medical care, Santa Cruz County sheriff Tony Estrada said. -
Feds sue Arizona sheriff in civil rights probe
Sep 2, 2010 — Associated Press Online
Arpaio, the Maricopa County Sheriff's Office and the county. Arizona's new law -- most of which a federal judge has put on hold -- mirrors many of the policies Arpaio has put into place in the greater Phoenix area, where he set up a hot line for the public to report immigration violations, conducts crime and immigration sweeps in heavily Latino neighborhoods and frequently raids workplaces for people in the U.S. illegally. Arpaio believes the inquiry is focused on his immigration...
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A window for immigration reform
Sep 8, 2010 — Los Angeles Times -
Immigration Crackdown Steps Into the Kitchen
Sep 8, 2010 — New York Times -
Latino Republican walking a tightrope in Nevada race
Sep 8, 2010 — Los Angeles Times
