Testing the Borders: The Boundaries of State and Local Power to Regulate Illegal Immigration

Abstract

The onslaught of state and local immigration regulation raises several interesting questions about the extent of states’ power to regulate the activities of undocumented aliens within their territories. One such question is whether states have the legal authority to regulate any aspect of illegal immigration. If indeed states do have such power, the primary inquiry centers on the extent of that power given the existing federal scheme, which requires consideration of both the nexus between the regulation and legitimate state—as opposed to federal—interests and the limitations on the states’ power to sanction offenders. More broadly, any restriction on states’ power to regulate the local effects of illegal immigration raises strong policy concerns. Should a few states carry the localized economic and social burdens of illegal immigration at the will of the others? Should federal law preempt state action when the federal government refuses to enforce it as enacted? This Comment addresses these questions to determine exactly where the outer borders of state immigration power do and should fall. 

Part II of this Comment provides a historical overview of the division of immigration powers between the state and federal governments, including an examination of the proposed constitutional sources of federal power and the aspects of immigration over which states have traditionally exercised authority. Part III discusses the development of federal legislation relating to illegal immigration with a particular focus on the changes enacted in the Immigration Reform and Control Act of 1986 (IRCA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Part IV examines the circuit split between the Third and Ninth Circuits regarding state power to regulate local employment and housing of illegal immigrants and addresses the Supreme Court’s decision in Chamber of Commerce v. Whiting purporting to resolve that split. Part V suggests a framework for determining whether state regulations fall within the realm of appropriate state power and applies this framework to two contested Arizona laws—the Legal Arizona Workers Act (LAWA) and Arizona’s newest immigration law, S.B. 1070—to demonstrate its viability. Part VI concludes.