Obama Administration Must Form an Answer on State Immigration Regulations
The Obama administration must take steps to end the proliferation of state and local immigration laws
STORY TOOLS
Let’s begin with the obvious: Arizona’s recent pattern of legislating in the immigration arena has created an incendiary climate <http://thinkprogress.org/2010/06/07/arizona-immigration-rallies/> of anger and fear in the state. Perhaps less obvious to the casual observer is that Arizona’s extremism has pushed the constitutional envelope and brought to the fore a critical national question, one that has been festering while Congress dithers: Will the federal government continue to abdicate its constitutional responsibilities over immigration policy and let states fill the void?
The Center for American Progress believes that regulation of immigration and enforcement of civil immigration laws are inherently federal responsibilities under Article I of the Constitution. Fifty different jurisdictions making 50 different sets of rules regulating immigrants would fundamentally negate the federal government’s interest in a coherent and unified foreign policy, not to mention its interest in facilitating interstate commerce. Permitting counties and municipalities to do the same would exponentially increase the chaos.
There is also no legal precedent for state regulation of immigration. The federal government has completely occupied the field of immigration law with a complex and pervasive regulatory scheme. To wit, our immigration laws include more than 70 different temporary visa <http://www.americanprogress.org/issues/2009/12/high_skilled_immigrants.html> categories, a couple dozen different permanent resident categories, and a variety of interstitial quasi-statuses—all carrying a variety of rights and obligations. Indeed, it would be hard to identify another area of law in which the federal government has so pervasively regulated the field.
Immigration status determinations are famously complex in part because immigration status is not static. People frequently move from one visa category to another or find themselves temporarily caught in between statuses. Delegating responsibility for enforcing civil status violations to local police not trained in the nuance of immigration law is a recipe for rights violations, not to mention a distraction from more pressing law enforcement priorities.
The Obama administration recently waded in to the debate over whether states can legislate in the immigration arena in a brief filed with the Supreme Court. The case, U.S. Chamber of Commerce v. Candelaria, involves a challenge to an Arizona law <http://www.azag.gov/LegalAZWorkersAct/hb2745h.pdf?inDoc=/legtext/48leg/1r/laws/0279.htm> passed in 2007 that requires employers to use a national electronic employment verification system called E-verify and establishes a state-level sanctions regime for employing undocumented workers. The 9th Circuit U.S. Court of Appeals upheld <http://www.scotusblog.com/wp-content/uploads/2009/10/09-115_ca9.pdf> the law, but the plaintiffs sought review of that decision with the Supreme Court, and the Court formally requested the administration’s views on the issues raised in the appeal.
The acting solicitor general of the United States argued <http://www.scotusblog.com/wp-content/uploads/2010/05/US-brief-on-immigration1.pdf> (correctly) that Arizona had overstepped its authority by establishing a parallel employer-sanctions law. He stated that the state law was explicitly preempted by federal law and that the underlying court decision should be reversed. This is an important signal and a critical first step in halting the growth of state and local immigration legislation. Given the current developments in Arizona and elsewhere in the country, the administration now has an opportunity, and a responsibility, to provide a more expansive articulation of its views on federal preemption of immigration regulation and enforcement by the states.
Read the full column http://www.americanprogress.org/issues/2010/06/candelaria_column.html
Marshall Fitz is the Director of Immigration Policy at the Center for American Progress.
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The Center for American Progress <http://www.americanprogress.org/> is a nonpartisan research and educational institute dedicated to promoting a strong, just and free America that ensures opportunity for all. We believe that Americans are bound together by a common commitment to these values and we aspire to ensure that our national policies reflect these values. We work to find progressive and pragmatic solutions to significant domestic and international problems and develop policy proposals that foster a government that is "of the people, by the people, and for the people."
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