A nationalist critique of local laws purporting to regulate the hiring of undocumented workers.

• Author: Lounsbury, Adam L.

1. Introduction II. Federal Restrictions on the Employment of Aliens A. Congressional Intent Underlying IRCA's Enactment B. IRCA's Primary Features III. State and Local Enactments: Local Responses to a National Problem IV. Supremacy and its Impact on Local Attempts to Regulate Immigration A. Federal Supremacy over Immigration B. Express Preemption Analysis: The Reach of IRCA's Preemption Clause C. Implied Preemption: Fielding Obstacles to IRCA 1. Field Preemption: Immigration or Employment Regulation? 2. Obstacle Preemption: Administrative and Remedial Obstacles to IRCA D. Market Participant or Regulator: Guidance from NLRA Preemption V. Conclusions I. INTRODUCTION

   This Comment discusses the implications of federal supremacy on local laws designed to regulate the hiring of undocumented workers. Deficiency in the United States' domestic immigration policy has become the topic of extensive discussion, and immigration policy in the post-9/11 era seems to reflect an acute national xenophobia. (1) The problems associated with uncontrolled immigration have manifested themselves not only as national security concerns, but also as microeconomic imbalances at the local level. (2) The economic concerns over the extant migrant population stem from the thought that undocumented workers, who are neither legally resident nor eligible for employment in the United States, (3) are taking jobs, absorbing government resources, and augmenting the criminal element in American society. (4) It is estimated that up to twelve million undocumented workers have matriculated into the American workforce. (5) Some have argued that "[t]he root of the current crisis of undocumented immigration is [the] fundamental disconnect between today's economic and labor market realities and an outdated system of legal immigration." (6) Significantly, in addition to the systemic faults in national policy, enforcement of existing immigration controls, like the restrictions on hiring undocumented workers, has been inconsistent. (7) This fundamental disconnect, combined with congressional inaction, has laid a foundation upon which many states, and their political subdivisions, have decided to build unique legislative responses.

   The proliferation of state and local responses have included attempts to regulate employment of aliens by placing additional hiring and documentation requirements on employers that are extraneous to the dictates of the Immigration Reform and Control Act ("IRCA"). (8)

   This Comment examines a fairly common local response to this national problem of undocumented immigration through the lens and tenants of federalism. The Paper will use Suffolk County's enactment as representative of the efforts that have been proposed and adopted on state and local levels. A basic understanding of the delicate balance of federalism, as structured by the Constitution, discloses that state and local responses placing additional requirements on employers will not withstand a Supremacy Clause attack.

   This Paper is structured such that Part II will preview IRCA's provisions and the relevant legislative history in order to develop a basic understanding of the operation of the federal law on which the subsequent preemption analysis will be grounded. Part III addresses the legislative purpose and specific provisions of Suffolk County's attempt to impose additional requirements on employers with respect to hiring undocumented workers. Part IV argues that local laws enacted to supplement IRCA will not survive an express or implied preemption challenge, and also suggests that a state or locality will not be able to escape a preemption analysis by defending a preemption attack on the basis that it is acting as a market participant to whom the preemption analysis does not apply.

2. FEDERAL RESTRICTIONS ON THE EMPLOYMENT OF ALIENS

   Since 1986, federal law has sought to prevent illegal immigration by eliminating opportunities for employment. Prior to the Immigration Reform and Control Act of 1986, American sentiment reflected an anti-immigrant attitude that was grounded in the assumption that the undocumented immigrant population extant in the United States adversely impacted the "economic, social, and political well-being of the nation." (9) This sentiment, compounded by the fragile economies of the 1970s and early 1980s, ultimately led Congress to craft and adopt IRCA, the first American legislation targeted at curtailing future undocumented immigration into the United States by restricting employers from employing aliens. (10) IRCA was unique, as compared to prior federal legislation regarding immigration, because it was designed to eliminate employment opportunity, which was considered one of the greatest '"pull' factors" that enticed undocumented workers to enter the United States. (11) It has been suggested that, setting all other '"pull' factors" aside, the availability of

   employment opportunities and wages greater than those available in other countries has had the greatest influence on migrants' desire to enter the United States illegally. (12) The theory driving the employment restrictions imposed by IRCA was Congress' attempt to "erect[] barriers ... which would, in effect, turn off the job magnet that draws the undocumented [workers] to U.S. borders." (13)

   The final provisions of IRCA were the result of nearly a decade of debate and political compromise. (14) The sentiments expressed during its formulation assist in distilling the congressional intent to preempt, which, as will be discussed, becomes critical in the preemption analysis to follow. The following sections discuss not only the climate in which IRCA was adopted, but also the critical features of the Act. This discussion supports the proposition that Congress enacted IRCA with the intent of preempting state or local enactments on the same subject. (15)

   1. Congressional Intent Underlying IRCA's Enactment

      The legislative history of IRCA reveals that Congress intended to use employer regulations as a national mechanism to control immigration. A brief review of the legislative history is helpful to divine congressional purpose to use employment restrictions as immigration controls.

      In the 1950s, Congress decided to reform an outdated mode of immigration regulations. In doing so, it enacted the Immigration and Nationality Act ("INA"), which controlled the "willful importation, transportation, or harboring of undocumented aliens" (16) by making those activities a punishable felony. In the wake of this enactment, however, the country's interest in honing the enforcement provisions of the INA--possibly because national attention was more focused on domestic civil rights issues--seemed to wane. (17) However, in the 1970s, a revival of the arguments that immigration should be better controlled reemerged and the process of immigration reform began to slowly gain momentum.

      The House Judiciary Committee, which received a grant of jurisdiction to examine immigration issues, concluded that illegal aliens were having a significant, adverse impact on the nation's labor market and economy. (18) The committee's findings revealed that '"the primary reason for the illegal alien problem is the economic imbalance between the United States and the countries from which aliens come, coupled with the chance of employment in the United States.'" (19) After leveling this finding, the committee suggested that "the most reasonable approach to this problem is to make unlawful the 'knowing' employment of illegal aliens, thereby removing the economic incentive which draws such aliens to the United States" and diminishing "the incentive for [U.S.] employers to exploit this source of labor." (20)

      The 1980s sparked a revived dedication to achieving immigration enforcement reform. Ultimately, after a great deal of fine tuning and political compromise, Congress adopted IRCA in 1986. (21) Importantly, Congress found that the most effective method through which it could effectuate its new immigration policy was regulation of domestic employers. It noted that "It]he principal means of closing the back door, or curtailing future illegal immigration, is through employer sanctions.... Employment is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in violation of their status." (22)

      The extensive history behind this Act is instructive for purposes of determining how IRCA fits in the overall scheme of federalism. (23) It is significant to this analysis that Congress, after more than a decade of debate, stalling, drafting, and redrafting, decided to settle on an immigration control aimed primarily at a domestic target: employers. The fact that Congress adopted employer sanctions as the primary mechanism for controlling immigration suggests the regulation is not merely an employment regulation but is a congressionally-preferred mechanism for regulating immigration and mitigating its effects. (24)

   2. IRCA's Primary Features

      IRCA represents Congress' attempt to give the INA a more comprehensive mechanism for immigration regulation and enforcement. The provisions relevant to this inquiry are laid out below in some detail as the overall functioning of the statute (25) is integral to the preemption analysis.

      The primary provision of IRCA punishes employers for knowingly hiring, or referring or recruiting for a fee, an alien that is not authorized to work pursuant to the authority of the Attorney General or the appropriate provisions of IRCA, which establish, in detail, employment eligibility requirements. (26) According to the statutory scheme, an employer, upon hire of any individual for employment, must verify that person's identity and employment eligibility and, under the penalty of perjury, affirm that the prospective employee is eligible to work in the United States. (27) Beyond employment eligibility verification, IRCA requires that employers maintain the affirmation...