Saturday, June 13, 2009

The Constitutionality of State and Local Laws Targeting Immigrants: Saturday Evening Review

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.   

McKanders

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.

RR


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Comments

The issues we had from the 70's were that Immigration did not have the proper cooperation of certain nations who's Citizen's we were admitting into our country. Many undesirable type and class of disfuctional entity were allowed in which upset the public safety. People of same culture or close neighboring culture sensed something wrong with some who were legally let in, and the differences with those coming in illegally.

The children of these were a smaller version of the same it seemed and although parents were unlawful the households children came with high demands and learning our constitution better than our own Citizenry. People ought not to teach disrespectful conduct of foreign law. What a precarious place it is to have a greencard status by default but much more a status that is De facto. Maybe this is why so many complained of criminal thinking foreign invasion of ther own people, saying even to thier own nation these simpley were not taught lawbiding ways. The children might have studied some schooling but with the parents leading the chlidren are pulled in another direction thus upseting the dynamic at home and in the community.

One of my parents entered as a Sedition unseen, attempted to upgrade her status by involving with an American man by treachery. She planed her own pregnancy all by herself and pressed him to do the right thing or else. In the end she was passed off by another of her own country a man who was also exploited for American status. One woman passing off an arrangement which already facilitated by a farse of a trampling of an American gentilemans dream of marriage, then turned around to Divorce him after two years, and pass the lump to another would be. The woman Human Trafficked, entered Insurance frauds for thirty years, and Child abuse undetected by taking repeated flight. What do we do in such immigration fraud? Don't people know their Constitutional Rights to REPORT anonymously? There is no excuse!

Posted by: jessica Gibbson | Sep 19, 2010 4:28:38 PM

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