November 14, 2007
STATE VERSUS FEDERAL POWER TO REGULATE IMMIGRATION
By: Susan Price, Principal Analyst
You asked what authority states have with respect to immigration matters. You also wanted information about the group “State Legislators for Legal Immigration.”
The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered such.
Many, but not all, state laws addressing immigration are preempted by federal law. The U.S. Supreme Court has ruled that the federal government has broad and exclusive power to regulate immigration, preempting state and local laws that also attempt to do so. In this context, state regulation of immigration means a state law or local ordinance that makes a determination of who should or should not be admitted into the country and the conditions under which a legal entrant may remain. State laws that tangentially affect immigration, such as employment licensing laws that can be revoked for violations of federal immigration laws, are expressly permissible.
There is no bright-line test for determining when states can validly act in the immigration arena; litigants must seek court rulings on a case-by-case basis. This has resulted in substantial uncertainty and significant inconsistencies in court approaches to these questions.
The group “State Legislators for Legal Immigration” describes its mission as “providing a network of state legislators who are committed to working together in demanding full cooperation among our federal, state and local governments in eliminating all economic attractions and incentives (including, but not limited to: public benefits, welfare, education and employment opportunities) for illegal aliens, as well as securing our borders against unlawful invasion.”
Its website (http://www.statelegislatorsforlegalimmigration.com) lists 31 states that have one or more legislators belonging to the group. The states are: Alabama, Arizona, Arkansas, California, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia.
PREEMPTION OF STATE LAWS REGULATING IMMIGRATION
The Supremacy Clause of the U.S. Constitution invalidates (preempts) state laws that interfere with or are contrary to federal law (Article VI, Cl. 2). With respect to immigration-related matters, the U.S. Supreme Court has held that:
the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, the act of Congress or treaty is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it. And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation….states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.
(Hines v. Davidowitz, 312 U.S. 52 (1941)).
Preemption can be express (i.e., stated in statute) or implied from a federal statutory scheme. Examples of implied preemption include state or local actions (1) in areas in which Congress intended to completely occupy the regulatory field or (2) that conflict with the federal scheme (De Canas v. Bica, 424 U.S. 351 (1976)).
PERMISSIBLE STATE ACTIONS
State and Local Employment Licensing Laws
Federal immigration law expressly allows states and localities to independently regulate the employment of illegal aliens through licensing and similar laws. Its legislative history notes that the statute's reference to “licensing” encompasses “lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions” of the federal law or “licensing or 'fitness to do business laws,' such as state farm labor contractor or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented workers” (H.R. Rep. 99-682, 1986 USCCAN 5649, 5662).
Enforcing Federal Immigration Laws
It is also generally recognized that states and localities may enforce the criminal provisions of the Immigration and Nationalities Act (8 USC § 1101, et seq.). For example, Section 1252(c) allows state and local law enforcement to arrest and detain aliens illegally present in the United States who have prior felony convictions. And under § 287(g) of that law, the U.S. Attorney General is permitted to enter agreements with states and localities to permit their law enforcement officers to perform additional duties relating to immigration law enforcement.
State and local enforcement efforts cannot impose new or additional penalties upon criminal immigration law violators.
Denying Access to Federal Public Benefit Programs
States that administer federal public benefits programs are permitted to follow federal rules for determining and verifying an applicant's citizenship/alienage status if that is a criterion for eligibility. Connecticut's attorney general recently ruled that while this rule is applicable to the Department of Social Services' administration of the federal Low Income House Energy Assistance Program, it is inapplicable to the community action agencies to whom the department had delegated the program's administrative functions. The agencies are not permitted to verify citizenship status (Attorney General Formal Opinion 2007-20).
Denying Access to State Public Benefit Programs
It appears that states can also limit access to state public benefit programs to people who are deemed “qualified aliens” under federal public benefit program laws. But laws and regulations targeting “illegal aliens,” which is not defined in federal law, may be preempted because they require state officials to make independent assessments of the legality of an applicant's presence in the United States (See generally, Feder and Gentile: Legal Analysis of Proposed City of Hazleton Illegal Immigration Relief Act Ordinance (Congressional Research Service, July 29, 2006)).