Saturday, June 13, 2009
What power do state and local governments have to regulate or enforce laws relating to immigration? This question is a recurring one, even as the federal government attempts immigration reform.
In her new article, The Constitutionality of State and Local Laws Targeting Immigrants,
available on ssrn here and forthcoming in University of Arkansas Little Rock Law Review, Professor Karla Mari McKanders of University of Tennessee (photo below), argues that
The practice of employing state and municipal laws to exclude immigrants should be discontinued. . . . . If states and localities are permitted to enact immigration laws, our country will have fifty different iterations of pro- and anti- immigrant laws. This will also cause state and local governments across the country to compete with each other to see who can pass laws to exclude immigrants from their states, so they will not have to address any issues that come along with migration and integrating immigrants into their communities. This will essentially result in a downward spiral of states with laws that exclude (a race to the bottom) as states and localities attempt to enact laws which result in immigrants relocating or self-deporting.
McKanders analyzes the various (and contrary) federal decisions, noting that the federal courts take two main positions: (1) when states act pursuant to their police powers, state laws that affect immigration are not per se preempted; and (2) the INA establishes a comprehensive scheme that preempts state and local laws that target or affect immigrants. She concentrates on Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976 (9th Cir. 2008), and Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 540-41 (M.D. Pa. 2007), but also discusses the important Eleventh Circuit case Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008), as well as several others.
This paper was prepared for a Symposium at University of Arkansas-Little Rock on “cause lawyering,” which the law review defined as “any activity that seeks to use law-related means or seeks to change law or regulations to achieve greater social justice—both for a particular individual and for disadvantaged groups.” The Symposium further focused on "immigrants and the Gay, Lesbian, Bisexual, and Transgender communities."
Professor McKanders was doubtlessly invited because of her excellent previous piece, Welcome to Hazleton! 'Illegal' Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, available on ssrn here and in Loyola University Chicago Law Journal. If you are teaching or working in this specific area, or on preemption more generally, McKanders' articles are definitely worth a close read.