Tuesday, June 21, 2011


My first post is going to combine my love of constitutional law with my love of immigration law.

First of all, a little constitutional law primer: Federal law preempts (displaces) state law. This starts with the Supremacy Clause of the Constitution (Article VI, clause 2), which states that the Constitution is the supreme law of the land. In 2008, the Supreme Court stated that if a federal law conflicts with a state law, the federal law will trump or preempt the state law. (Altria Group v Good, 555 US 70). There are two kinds of preemption: express when a federal law confirms the government’s intention to preempt state law and implied preemption. Implied preemption is a bit difficult to understand but basically it comes into play if (1) you cannot comply with federal and state law (2) state law impedes the achievement of Congress’ objectives or (3) the federal law is so complete that it occupies the field, leaving no room for state regulation.

The applicable federal law is the Immigration Reform and Control Act (IRCA) which makes it illegal for a person or other entity to employ an illegal alien while knowing that his presence in the country is illegal. 8 USC 1324(a)(1)(A). IRCA expressly preempts state laws that impose civil or criminal sanctions for employing illegal aliens, but allows sanctions through licensing or similar laws. 8 USC 1324a(h)(2). The Act also requires that employers to find out if an employee is eligible for employment and Congress created E-Verify (internet based system wherein an employer can check the work authorization of employees) to help in this matter.

The law at issue here is an Arizona law – the Legal Arizona Workers Act. This law allows for the suspension or revocation of licenses of Arizona employers that knowingly employ illegal aliens and requires that all Arizona employers use E-Verify.

The Arizona law was challenged on the basis that the license suspension and revocation provisions were expressly and impliedly preempted by federal immigration law and also that the mandatory use of E-Verify was impliedly preempted.

The Supreme Court affirmed the Ninth Circuit’s decision that the Arizona law was not preempted. It falls within the confines of the powers left to the states under IRCA because it imposes licensing restrictions, not criminal or civil sanctions so there is no express preemption. Nor is there implied preemption. The Arizona law is merely implementing the sanctions that it is allowed to implement under IRCA, in other words, licensing laws. As for the E-Verify provision, it is also not impliedly preempted because it does not conflict with the federal law.

My thoughts: The Court got it right. Arizona’s law does not conflict with IRCA. It does not impose sanctions beyond what IRCA allows states to impose. It falls within the area left to the states by IRCA – licensing. Furthermore, I personally think that states should be allowed to pass laws that implement federal law at the state level for better enforcement. We have a real problem with illegal immigrants in this country and it might be too much for the federal government to handle. I think that the states should be allowed to pass laws that help combat the problem, as long as they fall within the boundaries left to them by federal law. For example, a state cannot pass its own immigration laws (that would be preempted!) but it could pass a law that helps enforce the federal law. Just like Arizona did.

Want to read the case for yourself? You can find it on the Supreme Court's website: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf and more information on federal preemption can be found on Wikipedia (I know, I know, but it was the quickest resource! I don't have my constitutional law notes with me from law school!) - http://en.wikipedia.org/wiki/Federal_preemption

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