Untitled Essay, Samantha Thomas
State and municipal immigration regulations are problematic for documented and undocumented immigrants and U.S. citizens, and raise preemption challenges because they can conflict with existing national immigration laws. Although these state and municipal regulations have the potential to benefit immigrant communities, more recently they have been used as tools to disempower documented and undocumented immigrants and, to an extent, U.S. citizens. This paper will look at the legislative conflicts inherent in these regulations as well as their impact on individuals, and businesses.
After months of demonstrations and heated debates on congressional immigration reform, the Comprehensive Immigration Reform Act of 2006 died because it failed to pass the conference committee. Its death marked the birth of a number of state and municipal laws and ordinances designed to do "something" about the "immigration problem." After Congress's failed attempt to pass a comprehensive immigration reform law, local bills were passed to "get tough" on immigration and to send a message to the federal government that something needed to be done and something would be done. Unfortunately, that "something" took the form of 570 proposed pieces of legislation concerning immigrants, at least 90 bills and resolutions passed, and 84 bills signed into law in 32 states in 2006 alone. 1 In 2007, the number of state laws enacted tripled that of 2006, 240 laws compared to 84 laws. 2 Additionally, in 2007, 1,562 immigration bills were introduced and 46 states enacted local immigration laws. 3 These laws address legal and unauthorized immigration in the context of identification/licenses, employment, education, voting, housing, language and public benefits. 4
Despite the proliferation of negative ordinances, not all of the ordinances and state laws are unconstructive. In June 2007, the city council of New Haven, Connecticut passed an ordinance which would allow all residents, including illegal immigrants, to obtain identification cards that would let them open bank accounts and use other services that were previously unavailable without a driver's licenses or state issued identification card. There have been other laws, such as those in New York, Maryland, and Florida enacted to fight human trafficking and the abuse of migrant workers. 5 But these laws are the minority. The majority of proposed and enacted ordinances and state laws have not attempted to give immigrants more rights or to empower them. Rather, these immigration ordinances and laws have been designed to restrict and penalize illegal immigrants and, as a result, documented immigrants and US citizens have suffered.
The state laws and city ordinances are problematic because they add an unnecessary burden on both U.S. citizens and legal permanent residents (LPRs) by forcing individuals and business entities to legitimize their hiring decisions. For example, one Colorado state immigration law, passed January 1, 2006, requires all Colorado employers to examine the legal work status of every newly hired employee and to make copies of all documents that an employee uses to prove work eligibility. 6 The law also requires that the employers sign an attestation confirming under penalty of perjury that the employer did not knowingly hire an illegal worker. 7 Violations of the law result in a $5,000 fine for the first violation and a possible $25,000 fine for all subsequent violations. 8 This law places a legal burden on the employer that surpasses that which is imposed by federal regulations. In accordance to the Immigration and Nationality Act § 274A, employers can accept documents for the I-9 without independent verification as long as the documents reasonably appear genuine. 9 However, these measures would not be enough to satisfy the Colorado state law. Currently, there are at least 25 similar immigration- employment laws in at least 18 states. 10
State and municipal immigration regulations also affect U.S. citizens and documented immigrants by requiring them to validate their immigration status. Several of the laws and ordinances require verification of the citizenship or immigration status of individuals seeking benefits or seeking to engage in certain activities. However, studies have shown that U.S. citizens are less likely to have the documents required to verify their status than noncitizens. 11 Consequently, U.S. citizens are sometimes denied benefits that they are eligible for simply because they may not have verification documentation on hand. It is estimated that as many as 1.2 to 2.3 million citizens are in jeopardy of not receiving benefits because of these validation rules. 12 This number includes rural residents, seniors, and African Americans who in some cases may be at a disproportionate risk of being denied benefits because their social, economic and familial circumstances make it difficult for them to readily produce passports or birth certificates. 13 Low income citizens, such as nursing home residents, disaster survivors, and homeless people are also affected. 14
One of the most obvious reasons why state and local regulation of immigration is problematic is because it is unnecessarily confusing and blurs the roles and boundaries of state and local government and federal government. Responding to the immigration- employment Colorado state law, Tony Milo, executive director of the Colorado Contractors Association said, "We've now got this complex web of state and federal regulations that sometimes conflict with each other." 15 This description accurately encompasses the problems that result when states regulate in an area that the federal government is delegated to govern. The doctrine of preemption establishes that when Congress acts within the scope of its constitutional authority -the Constitution being "the supreme Law of the Land" - the laws it enacts may preempt state or local regulation in that field. Generally, Congress may preempt state or local actions when (1) it uses explicit language to express its intent to prevent state or local regulation, (2) it appears that Congress intended that federal law occupy the field in question, and (3) there is a conflict between both state and federal law or when state law stands as an obstacle to accomplish and execution of the purposes and objectives of Congress in a federal scheme. 16
State and local immigration regulation raises preemption concerns because the state and its municipalities are regulating an area that is traditionally regulated by Congress. One of the loopholes that the state and local governments have used to circumvent preemption is the 1976 DeCanas v. Bica case, in which the Supreme Court held that state regulation of matters only tangentially related to immigration, absent acts of Congress, would not be invalid on the basis of preemption. 17 Consequently, theorists believe that social and local governments can enact laws that impose regulations in areas that are separate than those imposed by the federal government (i.e. English requirements, licensing, renting and identification).
But state and local regulation still violates the doctrine of preemption, even if states try to dress it up as something that appears legitimate and constitutional. The rationale underlining preemption is that there are some subject matters that are best left to the federal government to regulate for the sake of both uniformity and consistency. One of the factors that courts consider when analyzing whether a local ordinance is preempted by federal immigration law is whether the ordinance "focuses directly upon…essentially local problems and is tailored to combat effectively the perceived evils." 18 This factor draws reference to the second type of preemption which is where it appears that Congress intended to occupy the regulatory field and this is where the state and municipality's immigration regulation faces the strongest preemption challenge. Congress has made their intent to regulate immigration clear through congressional laws that govern immigration in the context of areas such as employment, education, and public benefits. Furthermore, "immigration problems," such as undocumented immigrants in the work force is a problem that occurs everywhere in the United States. Consequently, state and local immigration laws affect the immigrant population nationwide. State and local immigration laws create a situation where it is virtually impossible for an immigrant to know what his or her rights will be if they migrate from one place to another. An immigrant can have certain rights in one city and fewer rights if he goes to another city. Addressing immigration on the local level has national implications in an area that Congress traditionally regulates in, keeping in mind other national concerns such as national security, international law and foreign policy. By passing regulation concerning immigration, state and local officials, arguably, are attempting to redress a national problem through their local immigration regulations and this is constitutionally impermissible.
In addition to preemption, state and local regulations also often hedge on violating the constitutional rights of U.S. citizens. For example, state and local regulations which do not allow rental without verification of citizenship or documentation of status in renting of spaces infringes U.S citizens right to rent to whom ever they chose. It violates their freedom of association by potentially prohibiting them from living with or renting to those who cannot prove their status.
State and local immigration regulations encourage a discriminatory environment by polarizing immigrant and nonimmigrant populations and presenting immigration policy as a burden. Employers, homeowners, educators, and others who must keep records to assure they are complying with validation laws often shy away from hiring anyone that looks as if they could be a immigrant, just to avoid access paper work, and possible red tape. This discrimination, not only affects documented and undocumented immigrants, but it also directly affects Americans whose families have been here for centuries but who have the "unfortunate" fate of belonging to a class of people who are easily identified as not originating from the United States.
State and local immigration laws are clearly problematic for all involved and immigration issues are better left in the hands of Congress, who is delegated this power to begin with. State and local immigration laws complicate an already complicated issue by creating unnecessary confusion and local and state legislative overstepping, inconsistency, and discrimination. The best way to solve this problem is to encourage Congressional members to continue their work on a comprehensive immigration bill which will both address the concerns of municipalities and states, and not disempower U.S. citizens and immigrants. Although this is no easy task, perhaps the beginning of discussions concerning such a bill will calm the wave of local and state municipal laws.
1. 2006 State Legislation Related to Immigration: Enacted and Vetoed, (Nat'l Conference of State Legislatures) Oct. 31, 2006, available at http://www.ncsl.org/programs/immig/6ImmigEnactedLegis3.htm.
2. 2007 Enacted State Legislation Related to Immigrants and Immigration, Highlights, (Nat'l Conference of State Legislatures), Jan. 31, 2008, available at http://www.nscl.org/programs/immig/2007immigration final.htm.
4. Stephen Yale-Loehr & Ted Chiappari,, Immigration: Cities and States Rush in Where Congress Fears to Tread, New York Law Journal, Feb. 2007, available at http://www.millermayer.com/site/new/nylj_locallaw.html.
5. 2007 Enacted State Legislation Related to Immigrants and Immigration, Highlight, supra note 2.
6. Colo. Rev. Stat. § 8-2-122 (2006)
7. Yale-Loehr, supra note 4, at 1.
9. Id.; Immigration and Nationality Act (INA) § 274A (b)(1)(A), 8 U.S.C. § 1324a (b)(1)(a)
10. 2007 Enacted State Legislation Related to Immigrants and Immigration, Highlight, supra note 2
11. E.g., Tanya Broder, State and Local Policies on Immigrant Access to Services: Promoting Integration or Isolation? (Nat'l Immigration Law Center, Los Angeles, CA) May 2007, at 8.
15. Yale- Loehr, supra note 4, at 2.
16. Memorandum from Jody Feder & Michael Garcia to Hon. Paul E. Kanjorski (June 29, 2006)(on file with Congressional Research Service)
17. DeCanas v. Bica, 424 U.S. 351, 355 (1976).
18. Id. at 357.