What is Preemption and How Does it Affect State Immigration Laws?

Recently, many states have enacted their own immigration laws, mostly out of a claimed frustration with the federal government’s inaction to reform and enforce immigration laws already existing. By enacting state immigration laws, states have entered into an area of law that is generally viewed as exclusive to the federal government. The federal government has filed lawsuits to invalidate the state immigration laws claiming that they are preempted by federal law.

For example, on October 31, 2011, the United States of America filed a lawsuit in the United States District Court for the District of South Carolina against the state of South Carolina and Nikki R. Haley, in her official capacity as the Governor of South Carolina. The lawsuit challenges the validity of provisions of South Carolina’s Act No. 69, which will take effect in January of 2012.

Among other things, Act No. 69 makes it a state crime to be unlawfully present in the United States, and allows police to determine immigration status if they have a reasonable suspicion of unlawful presence. It also requires that all businesses check their hires through the federal online system known as E-Verify. The Act shares similarities to laws enacted by other states.

The main contention of the United States is that Act No. 69 and other similar state laws violate the Supremacy Clause of the U.S. Constitution and are preempted by federal law because of conflict between it and the state laws enacted.

Explanation of Preemption

Preemption is derived from the Supremacy Clause of the U.S. Constitution. The Supremacy Clause provides that the “[U.S.] Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. Under this clause, Congress may enact laws pursuant to some power given to it under the Constitution and expressly preempt state laws.

An example of this comes from the U.S. Supreme Court Case of Chamber of Commerce v. Whiting. At issue was the express preemption clause in the Immigration and Nationality Act section 274A(h)(2) preempting “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). The Chamber of Commerce sued individuals and entities administering the Legal Workers Arizona Act of 2007 (“Act”) claiming it was preempted by section 274A(h)(2). The Act, among other things, allowed Arizona courts to suspend or revoke business licenses if an employer knowingly or intentionally employed an unauthorized alien. The Supreme Court held that the Act was a licensing law and was not expressly preempted. Had it been a non-licensing law, then it most likely would have been preempted.

Instead of express preemption, The Supreme Court has found that Congress may impliedly preempt state laws. This occurs either when a federal statute indicates that Congress intended federal law to occupy a field exclusively, or when state law is in actual conflict with federal law.

The Chamber of Commerce case also provides an example within the immigration context of the issue of implied preemption. Another challenged part of the Act was that it mandatorily required employers to use E-verify to make sure its employees were authorized to work. Federal law makes participation in E-verify voluntary. However, the Supreme Court did not find that the federal law preempted the Act because the provision contained no language circumscribing state action.

Rhetorical Questions on States’ Authority to Enact Immigration Legislation

As states enact laws regarding immigration issues, the question of their authority to do so comes into issue. Is immigration something that should be exclusively controlled by the federal government? Should states be allowed to participate in this regulation? How far should that participation go? Should states regulating immigration not even be an issue? Should a balance between states and the federal government be struck? How is this balance to be formed?