Immigration Reform: What Can the States Do?

  • There are millions of illegal or "unauthorized" immigrants in the US
  • Arizona isn't the only state trying to deal with illegal immigration
  • The July 2010 court ruling on Arizona's law may not be good news for some
  • It may take some time before we know how much power states have when it comes to immigration reform 

According to the US Department of Homeland Security, there are millions of illegal or "unauthorized" immigrants in the US, making illegal immigration a problem for states from coast to coast. Although there are federal immigration laws, some states think the federal government isn't doing enough, so they're taking action on their own. It raises the question: What can the states really do?

States and Others Act

Immigration reform has been a hotly debated issue for years, but the federal government has yet to fix the problems with current immigration laws and enforcement that practically everyone agrees exist. In April 2010, Arizona passed a controversial immigration law. It was met with cheers, jeers, and lawsuits.

Among other things, Arizona's law requires foreign nationals to carry their US immigration registration papers at all times and requires police to confirm the immigration status of anyone they reasonably suspect is an illegal immigrant.

Arizona's not alone. There are reports Florida state Senator Bennett is considering introducing a very similar law when the Florida legislature meets in the spring of 2011. In Ohio - thousands of miles away from the US-Mexico border - one county sheriff is lobbying state lawmakers to pass an Arizona-type law. Tennessee voters may push their state lawmakers to follow suit.

And, believe it or not, this raging debate didn't start with Arizona or in 2010. State and local governments across the US have been passing immigration-related laws and ordinances as far back as 2006.

Arizona Ends the Debate?

It may not have begun in Arizona, but the debate may end there. In late-July 2010, a federal judge in the lawsuit challenging the legality of the Arizona immigration law made a ruling that may show exactly how much power the states have when it comes to immigration reform laws. It doesn't look good for those who want stiffer immigration laws.

The judge ruled that several of the key provisions of the Arizona law are invalid because of the "pre-emption" doctrine. It comes from the Supremacy Clause in Article VI of the US Constitution.

Basically, it means the federal government, and specifically the US Congress, has full and exclusive power to regulate or pass laws about certain subjects and areas. Any state law that interferes with federal laws in one of these areas is invalid and unenforceable. Immigration is one of the areas where Congress has full and exclusive power.

Invalidated Sections of the Law

According to the judge, portions of the Arizona law that are invalid include, among other things:

  • The requirement that police confirm the immigration status of anyone they have a reasonable suspicion of being in the US illegally
  • Making it a crime not to carry US immigration papers
  • Making it a crime for undocumented immigrants to look for a job or actually perform work

Portions of the law that are enforceable include:

  • Making it illegal to create "sanctuary" cities or communities where federal immigration laws aren't enforced
  • Making it a crime to pick up day laborers if it disrupts the normal flow of traffic
  • Requiring employers to E-Verify new employees and not to knowingly or intentionally hire illegal immigrants

Clearly, the decision in the Arizona case seriously restricts what state and local governments can do when passing immigration reform laws. Arizona Governor Brewer immediately filed an appeal to have the judge's ruling thrown out. It's very possible the case will go to US Supreme Court. One thing is certain: It may be some time before we know how much power the states have when it comes to stemming illegal immigration within their borders.

Questions for Your Attorney

  • Can Arizona police officers enforce the original immigration law while the case is on appeal?
  • What should I do if my immigration papers have been destroyed?
  • What can an undocumented immigrant do if he was arrested because an officer had a "reasonable suspicion" he was in the US illegally?
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