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June 7, 2011


IMMIGRATION AND POLICY: PREEMPTION ISSUES: "Posted by Norka M. Schell In the last few years we have seen an intensified public debate over the issue of undocumented immigrants in the..."


Posted by Norka M. Schell

In the last few years we have seen an intensified public debate over the issue of undocumented immigrants in the United States. Despite Congress determination to address undocumented immigration, it failed to pass comprehensive legislation. Inertia on the part of the federal government is to blame for the frustration at the local level. Since then, a number of states are venting their frustation with the current immigration system. California, Colorado, Florida, Georgia, Indiana, Kentucky, Maine, Maryland, Mississippi, Nebraska, Oregon, South Caroline, Texas, Utah, Alabama, Virginia, and Arizona decided to do something about the immigration problem and have already passed states laws to get tough on immigration and to send a message to the the federal government that something needed to be done now.

States and local ordinances is problematic because it is unnecessarily confusing and blurs the roles and boundaries of the state and local government and federal goverment.


The determination that a state law or a local ordinance is preempted by federal law originates in the "Supreme Clause" (U.S. Const. art. VI, cl. 2) of the United States Constitution. Preemption may be express or implied. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 517-29 (M. D. Pa. 2007) [striking down local ordinance that prohibits hiring undocumented persons because it is expressly preempted by IRCA, and striking down the city's tenant registration provisions because they impliedly conflict with federal law]; same as to ordinance requiring tenants to present evidence citizenhip or eligible immigration status. Implied preemption arises where Congress has occupied to subject area to the preclusion of state or local laws because of the nature of the federal interest or the pervasiveness of the federal regulatory scheme or because the state or lacal law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the Congress or if it is impossible for a party to comply with both state and federal law. Lazano, supra at 525-29. Where sate does not actually conflict with federal immigration law and where area of alw is not traditionally occupied by federal law, state law will be respected. De Canas v. Bica, 424 U.S. 351 (1976). In De Canas the Court adopted three tests to determine whether  a state law relating to immigration is preempted by federal law. A state statute will be deemed preempted if (1) the state law is a regulation of immigration; (2) Congress intended to completely oust state power; (3) the state law stands as "obstacle" to the accomplishment  of congressional objectives or conflicts with federal law, making compliance with both state and federal impossible.

In Chamber of Commerce of the United States of America vs. Whiting, No. 09-115, 2011 WL 2039365 (S. Ct. May 26, 2011) the U.S. Supreme Court held that the legal Arizona Workers Act (LAWA) which provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be suspended or revoked and requires all Arizona employers to use the E-Verify system to confirm that their employees are authorized to work in the United States, is not preempted by federal law.


Justice Roberts began by saying,  "Federal immigration law expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ... unauthorized aliens. A recent enacted Arizona statute -- the Legal Arizona Worker Act -- provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. The law also requires that all Arizona employers use a federal electronic verification system to confirm that the workers they employ are legally authorized workers. The question presented is whether federal immigration  law preempts those provisions of Arizona law. Because we conclude that the State's licensing provisions fall squarely within the federal statute's saving clause and that the Arizona regulation does not otherwise conflict with the federal law, we hold that the Arizona law is not preempted."

"Our task then is to make our national laws actually work - to shape a system that reflects our values as a nation of laws and a nation of immigrants. And that means being honest about the problem, and getting past the false debates that divide the country rather than bring it together." President Obama, January 25, 2011