IMMIGRATION: A FEDERAL ISSUE?

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  Article VI U.S. Constitution Sec 1, cl. 2

The above passage is commonly referred to as the Supremacy Clause.  This section of the U.S. Constitution effectively prohibits States and local governments from making laws that are expressly or impliedly regulated by Congress.  When dealing with immigration issues, however, the situation becomes muddled.  Do the states have authority to make anti or pro-immigration laws?

In 1952, Congress passed the Immigration and Nationality Act (INA).  This solidified the federal government’s control over immigration.  In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which defined the conditions of employment for immigrant and anti-discrimination provisions preventing employers from discriminating against immigrants while complying with the IRCA.  So does this answer our question?  Not really.

Although Federal laws preempt State and local authorities’ abilities to make laws on the same subject matter, issues become blurred when the Federal Law does not “expressly” regulate a certain issue.  In other words, when the federal government leaves gaps, the states attempt to fill them.  For example, Secretary of Homeland Security and former Governor Janet Napolitano indicated that “immigration is a federal responsibility, but signed House Bill 2779 [Legal Arizona Workers Act] because it is abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reform our country needs.”   The question becomes even more convoluted when Congress passed the CLEAR (Clear Law Enforcement for Criminal Alien Removal) Act and Homeland Security entered into 287(g) agreements with state and local police.  This underlines the importance of Comprehensive Immigration Reform being adopted by Congress.

On September 29th, an Arizona Guardian Headline read, “Pearce tries again for anti-illegal immigration package.”  According to the Guardian, State Senator Russell Pearce will again attempt to garner the support needed to pass legislation covering five major components:

• Allow a person to sue a government body that acts to limit or restrict the enforcement of federal immigration laws. It includes fines of $1,000 to $5,000 for government bodies that continue the polices after the actions have been filed.

• Make the act of entering or remaining in Arizona in violation of federal law a state crime as well. The measure would allow local law-enforcement authorities to arrest suspected illegal immigrants on state trespass charges, or to turn over suspected illegal immigrants to federal authorities for deportation.

• Provide the state attorney general and county attorneys new subpoena authority in employer sanctions cases.

• Make it illegal for illegal immigrants to solicit day work, and for anyone with an Arizona business license to aid, harbor, conceal or transport illegal immigrants for day work. It includes mandatory fines of $1,000 for every illegal immigrant being transported and the mandatory impoundment of a vehicle used to transport workers.

• Make it a misdemeanor for employers not to sign up use the federal E-Verify system, which is already required for employers.

Former Republican Presidential Candidate Mike Huckabee, while Governor of Arkansas, strongly opposed a proposed Arkansas law that would have denied immigrants public services because he saw the law “as inflammatory…race-baiting and demagoguery…{The bill} inflames those who are racist and bigots and makes them think there’s a real problem.  But there’s not.” 

Action by Congress to adopt Comprehensive Immigration Reform will reassert the authority of the Supremacy Clause and preempt States and localities from enacting the kind of anti-immigrant, socially inflammatory, and economically self-destructive legislation embraced by Senator Pearce and his followers.



***Based on Research Paper by Karla M. McKanders, The Constitutionality of State and Local Laws Targeting Immigrants, May 2009.