Discovering 'Immployment' Law: The Constitutionality of Subfederal Immigration Regulation at Work

Abstract

Recently, there has been a federal-subfederal tug of war about whether subfederal governments can enact laws prohibiting the employment of undocumented immigrants and requiring employers to use an electronic employee-verification system without running afoul of the Constitution’s Supremacy Clause. This article reframes and sheds new light on this pressing constitutional question. To date, court battles and scholarship on this issue have exclusively focused on whether federal immigration law preempts these subfederal laws. In contrast, this article alters the analytical lens and exposes the preemptive effects of two federal employment statutes - Title VII of the Civil Rights Act and the Fair Labor Standards Act. It draws from legislative history, Supreme Court jurisprudence and scholarship to both demonstrate the need to consider federal employment law’s preemptive effects and to develop a new implied preemption framework. The analysis reveals that subfederal employer sanctions laws are unconstitutional because they conflict with fundamental federal employment policy goals to protect employees from employment discrimination and to encourage valid employee-initiated complaints for the benefit of employees more broadly. The article also elaborates why we should consider the joint preemptive effect of the two federal statutory regimes that subfederal employer sanctions laws implicate: federal immigration law and federal employment law. This hybrid "immployment-law" preemption framework shows that subfederal employer-sanctions laws may also conflict with Congress’s intent to promote federal employment policy as part of the Immigration Reform and Control Act.