FEDERAL PREEMPTION

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.