Aliens in a Foreign Field: Examining Whether States Have the Authority to Pass Legislation in the Field of Immigration Law - Jonathan Futrell

• Publication year: 2012

Comment

Aliens in a Foreign Field: Examining Whether States have the Authority to Pass Legislation in the Field of Immigration Law

I. Introduction

There is no question that immigration regulation is primarily a national issue. The federal government regulates when people can come into the country, how long they can stay, and what they can do while they are here.¹ The United States Supreme Court has continually reaffirmed Congress's plenary power to create and regulate immigration laws.² Any comprehensive immigration reform law must come from Congress. The recent laws passed by Arizona, Georgia, and Alabama cannot be classified as immigration reform laws. Instead, these are immigration "related" laws. The question then becomes just how far can the states go in passing laws that are related to immigration? Unfortunately for the state legislatures, there is no bright-line answer, but the courts' adjudicative challenges to these state laws have started to provide some clarity. So far it seems the states are allowed to focus immigration statutes in areas where they have traditional police powers,

1. See Kleindienst v. Mandel, 408 U.S. 753, 765-66 (1972).

2. See id.

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such as employment relationships. However, lingering questions remain as to whether states may enforce federal immigration law through their police powers and what type of role the states have in shaping foreign policy.

Ultimately, it seems that the states have a limited role in passing immigration-related laws, especially ones that interfere with federal immigration law. This Comment attempts both to explain why the states are so limited in their ability to pass immigration-related laws and to examine alternative options the states do have to participate in combating illegal immigration. Part II discusses generally what role the federal government plays in creating and enforcing immigration law. Part II also discusses what role the states can play in enforcing immigration policy. Part III addresses why it will be difficult for states to overcome the preemption doctrine. Generally, the preemption doctrine is used by the courts to analyze whether federal and state laws can coexist.³ Because the United States Constitution establishes that laws passed by Congress are the supreme law of the land, courts must strike down a state law if it conflicts with federal law.⁴ Part III also examines why state level immigration laws are inconsistent with both established police powers and foreign policy jurisprudence. Part IV discusses what types of immigration-related laws the states are legitimately able to pass. In addition, Part IV analyzes current developments in the relationship between the United States Department of Homeland Security and state level police officers while encouraging more cooperation between the federal and state governments.

II. The Regulation and Enforcement of Immigration Policy

The federal government has plenary power over the regulation of immigration, while the states have the ability to pass laws that merely affect immigration.⁵ But just how far the states can go in passing laws that affect immigration is a recurring question, continually raised as different states pass laws that regulate alien registration requirements, the exclusion of aliens from entry to a state, and even aliens' eligibility to work or receive local benefits in a particular state.⁶ The recent laws passed by Arizona, Georgia, and Alabama all have a direct effect on immigration law enforcement because these laws, among other things, allow state officers to check a suspect's immigration status, thereby

3. See infra Part II.A.

4. Id.

5. See infra Part II.A-B.

6. See Karl Manheim, State Immigration Laws and Federal Supremacy, 22 Hastings Const. L.Q. 939, 942 (1995).

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informing the Department of Homeland Security of that suspect's presence in the country.⁷ In order to understand the courts' treatment of these recent state laws, it is helpful to briefly examine both the accepted roles of the federal government and the states in regulating immigration.

A. The Federal Government's Role in Regulating Immigration Policy

The federal government alone has the plenary power to prescribe rules determining which aliens may enter the country and which aliens may stay.⁸ In Lung v. Freeman,⁹ an 1875 case dealing with immigration regulation, the Supreme Court expressly stated that Congress alone has the authority to pass laws regulating the admission of immigrants into the United States.¹⁰ The Court held that a California law, which allowed state officials to classify immigrants and fine them on the basis of that classification, was unconstitutional because immigration regulation affects international relations, and the national government is responsible for defining American foreign policy.¹¹ The Court also expressed the fear that ifa state passes an immigration law that harms foreign relations so significantly that it starts a war with another nation, then the United States, and not the individual state, would have to fight that war.¹² Sixty-five years later, in Hines v. Davidowitz,¹³ the Court held that the national power of foreign affairs, including immigration, naturalization and deportation, belongs to the federal government.¹⁴ There, the Supreme Court ruled that the Federal Alien Registration Act¹⁵ preempted Pennsylvania alien registration provisions.¹⁶ In reaching its decision, the Court stated that areas of law-like immigra-tion-that affect foreign relations should be uniform and dealt with on a

7. See Ariz. S.B. 1070, Reg. Sess. (2010), available at http://www.azleg.gov/legtext/49 leg/2r/bills/sb1070s.pdf; Ga. H.R. Bill 87, Reg. Sess. (2011), available at http://www1.leg is.ga.gov/legis/2011_12/falltext/hb87.htm; Ala. H.R. Bill 56, Reg. Sess. (2011), available at http://alisondb.legislature.state.al.us/axas/ACASLoginIE.asp?SESSION=1058.

8. U.S. Const. art. I, § 8, cl. 3-4.

9. 92 U.S. 275 (1875).

10. Id. at 280 ("The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.").

11. Id. at 276, 279-80.

12. Id. at 279-80.

13. 312 U.S. 52 (1941).

14. Id. at 62.

15. Act of June 28, 1940, ch. 439, 54 Stat. 673 (repealed 1952).

16. Hines, 312 U.S. at 74.

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national level and, when Congress regulates immigration, any state action must be subordinate to the supreme national law.¹⁷

In the second half of the twentieth century, Congress passed many different and important pieces of immigration legislation. Passed in 1952 and later amended in 1990, the Immigration and Nationality Act (INA)¹⁸ sets forth the systematic scheme of federal immigration law.¹⁹ The INA defines alien classifications and sets forth the conditions required for entry and residency in the United States according to each classification.²⁰ Legal aliens must be classified either as a nonimmigrant, immigrant, and/or refugee, and each classification has separate requirements that the alien must satisfy to stay in the country.²¹ of course, if an alien is in the country illegally, he is subject to removal.²² Removal proceedings are initiated and governed by the Department of Homeland Security, and these proceedings require that the alien have a hearing before an immigration judge.²³

Regarding employment, Congress passed the Immigration Reform and Control Act (IRCA)²⁴ in 1986, which regulates employer compliance requirements and penalties.²⁵ IRCA makes it unlawful for an employer to hire an illegal alien "or to hire anyone . . . without complying with the work authorization verification system created by the [Act]."²⁶ The verification system requires that an employer and employee complete and sign a United States Citizenship and Immigration Services (USCIS) form I-9, and that the employer examine and attest to the examination of certain documents that verify a potential employee's identity and authorization to work legally in the country.²⁷ IRCA also allows for prosecution and sanctions against employers who do not comply with the Act's requirements.²⁸ IRCA also expressly preempts states from imposing similar sanctions and penalties against employers.²⁹

17. Id. at 62-63, 68.

18. 8 U.S.C. §§ 1101-1537 (2006 & Supp. IV 2010).

19. See United States v. Alabama, 813 F. Supp. 2d 1282, 1294-96 (N.D. Ala. 2011) (citing Lozano v. City of Hazleton, 620 F.3d 170, 196-98 (3d Cir. 2010), vacated, 131 S. Ct.

2958 (2011)).

20. Id. at 1294.

21. Id. at 1294-95.

22. Id. at 1295.

23. Id.

24. 8 U.S.C. § 1324a (2006).

25. Alabama, 813 F. Supp. 2d at 1296-97.

26. Id. at 1296; 8 U.S.C. § 1324a(a)(1)-(2).

27. Alabama, 813 F. Supp. 2d at 1296; 8 U.S.C. § 1324a(b).

28. Alabama, 813 F. Supp. 2d at 1297; 8 U.S.C. § 1324a(e)(1)-(6).

29. Alabama, 813 F. Supp. 2d at 1297; 8 U.S.C. § 1324a(h)(2).

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In 1996, Congress added more verification requirements on employers when it passed the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA).³⁰ One of the most important provisions in IIRIRA established the E-Verify system, which allows an employer to authenticate I-9 documents provided by a potential employee.³¹ The employer enters the information from the documents into an online system, and the federal government will respond and inform the employer if the documents are authentic or fake.³² It is important to note that federal law generally leaves the decision to use the E-Verify system up to the individual employer.³³ The employer instead can opt to simply review the I-9 documents without using E-Verify.³⁴

B. The States' Role in the Field of Immigration Law

While the power to regulate immigration belongs to the federal government, the states do have some authority to enact laws that might affect immigration through their inherent police powers, provided that the state laws are constitutional and not preempted by federal law.³⁵ ...