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State Enforcement or Regulation of Immigration Law

Compose

Congress Should Oppose Attempts to Require or Authorize States to Regulate Immigration

March 2011

Immigration is an area of exclusive federal jurisdiction because it affects national security, border security, and foreign relations. A multitude of state and local laws governing immigration would undermine our national interest. Congressional proposals requiring states to enforce or authorizing states to regulate immigration law should be rejected. Immigration law should remain a federal matter.

Federal proposals to authorize state regulation of immigration law have repeatedly failed.

Since 2003, federal lawmakers have proposed bills “reaffirming” the inherent authority of states and localities to regulate immigration.  Introduced in the 112th Congress by Rep. Marsha Blackburn (R-TN), the Clear Law Enforcement for Criminal Alien Removal Act (CLEAR Act) (H.R. 100) would “reaffirm” the inherent authority of states to enforce immigration laws and require states to enact laws to enforce immigration laws in order to receive federal funds.[1]  Since 2003, the CLEAR Act has been introduced in every congressional session.  The CLEAR Act was adopted as an amendment to the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (Rep. James Sensenbrenner, R-WI), but the bill failed to advance in the Senate.[2]

State attempts to regulate immigration law are time-consuming, expensive, and unconstitutional.

In the absence of comprehensive immigration reform, states and local governments have introduced laws related to immigration policy not only in the area of law enforcement but in housing, public benefits, employment, identification cards and licenses, education, and public health.  In 2010, state legislatures introduced over 1,400 immigration-related bills and resolutions, of which 346 were enacted, [3] and multiple bills have already been introduced this year.  Some of these state and local immigration laws, however, have been struck down in federal court because they intrude into the federal government’s exclusive power to regulate immigration.[4]  For over a century, the Supreme Court has upheld Congress’s full and complete authority to regulate immigration.[5]  If states and localities were permitted to enact their own immigration laws, the result would be a patchwork of conflicting laws for which compliance would be complicated and impractical, if not impossible.  These state and local laws should not be authorized by Congress because they would destroy the uniformity of our immigration law that is a fundamental principle of our Constitution and federal government.

State and local laws attempting to regulate immigration are bad for communities.

When local law enforcement agencies enforce civil immigration law — whether because they have entered into agreements with the federal government or because they have created their own immigration laws — crime reporting in immigrant communities decreases.  For example, in Oakland, CA, Veronica called the police when she got into a heated argument with her brother.  When the police came to investigate, Veronica was arrested, even though she was a U-visa recipient.  After proving her valid immigration status, Veronica was released.  Veronica says she will never again call the police when she is in need of assistance.  Immigrants such as Veronica become afraid of the police after learning that contact with local law enforcement could lead to their own deportation.  They stop reporting crimes.  Criminals go free, and, as a result, all of our communities are less safe.

Many state and local police chiefs oppose local enforcement of immigration laws.[6]

Police chiefs recognize the enormous benefit that community policing has on reducing crime.  Rather than spending their time arresting immigrants who may or may not have committed any crime, they see their job as fighting crime and protecting the community.  Cash-strapped state and local law enforcement agencies should not be tasked with enforcing federal immigration law when they have neither the resources nor the training to undertake this role.

Congress should continue to reject bills that would give police the authority to regulate immigration or authorize state and local immigration legislation.

For the sake of the nation’s unity, it is critical that the 112th Congress follow the example of previous Congresses by leaving regulation of immigration to the federal government, where it has always resided. 

  • State and local regulation of immigration law is unconstitutional.  The Supreme Court has consistently held that regulation of immigration laws is a federal matter.

  • Authorizing states and localities to enforce immigration law will lead to a patchwork of laws that undermine our federalist system of government.

  • Requiring states and localities to enforce immigration law would destroy community policing, making all of us less safe. 

  • Federal laws claiming to “reaffirm” the rights of states to enforce immigration law are misguided.  There is no inherent authority for states and localities to enforce immigration law. 


Notes:

[1] The CLEAR Act was first introduced in 2003 (H.R. 2671) by Rep. Charles Norwood (R-GA).  Rep. Norwood introduced versions of the bill, containing similar provisions, in 2005 (H.R. 3137) and 2007 (H.R. 842).  Rep. Marsha Blackburn (R-TN) introduced similar bills in the House in 2007 (H.R. 3494), 2009 (H.R. 2406), and 2011 (H.R. 100).  In the Senate, Sen. Jeff Sessions (R-AL) introduced the Homeland Security Enhancement Act of 2005 (S. 1362) as a bill related to H.R. 3137.  S. 1362 declared that it reaffirmed the inherent authority of states to enforce immigration law but did not require states to enact immigration laws in order to receive federal funds or authorize funds to police that enforce immigration laws.  Instead, the Sessions bill stated that statutes, policies, or practices that prohibited state and local police from enforcing federal immigration law or sharing information were in violation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
[2] As an amendment to Rep. Sensenbrenner’s Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437), the CLEAR Act was adopted by a House vote of 237-180 (Roll No. 656) on Dec. 16, 2005.
[3] 2010 Immigration-Related Laws and Resolutions in the States (January 1 - December 31, 2010) (National Council of State Legislators, Jan. 5, 2011), www.ncsl.org/default.aspx?tabid=21857.
[4] In July 2010, a federal judge ruled that major elements of Arizona’s SB 1070 were preempted by federal law. U.S. v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010).  Arizona has appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, and the case is currently under consideration.  In September 2010, a federal appellate court struck down as unconstitutional a law enacted four years ago by the city of Hazleton, PA, that would have punished landlords and employers who rented to or hired “illegal aliens.” Lozano v. Hazleton, 620 F.3d 170 (2010).  The court found that the Hazelton law violated the Constitution’s Supremacy Clause.  In December 2010, the U.S. Supreme Court heard argument regarding another Arizona law that regulates employment of unauthorized immigrants and employment eligibility verification. Chamber of Commerce v. Whiting, No. 09-115 (U.S. Dec. 8, 2010) (oral arguments).  A decision is expected in that case by summer 2011.
[5] See DeCanas v. Bica, 424 U.S. 351, 354–55 (1976)  (“Power to regulate immigration is unquestionably exclusively a federal power.”); see also Kleindienst v. Mandel, 408 U.S. 753 (1972); Fiallo v. Bell, 430 U.S. 787 (1977); Harisiades v. Shaughnessy, 342 U.S. 580 (1952).
[6] See Why Police Chiefs Oppose SB 1070 (National Immigration Law Center, June 2010).