Immigration Related State Statutes and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement

Abstract

It is my thesis that state, country, and local ordinances aimed at regulating general immigration functions are unconstitutional as a function of exclusive federal pre-emptory powers. If purely state, county, or local interests are governed and if federal pre-emptory powers are not triggered, such ordinances could be properly enacted, provided they are not subterfuges for replacing or substituting for federal authority. As one example, purely state benefits can be extended or withheld to undocumented college students, for tuition benefits and state residency determinations are properly designated as state classifications, which reference but do not determine immigration status. And the federal government has enacted statutes and promulgated regulations that subcontract or designate state or sub-federal immigration enforcement; many examples include assorted Memoranda of Understanding (MOU's) that calibrate and regulate a proper role for effectuating federal obligations. But a number of Supreme Court decisions and common law do not reserve or allow a substantive non-federal role for local, county, state, or multi-state authorities in immigration enforcement absent such delegation and carefully controlled, designated purposes.

Keywords: Immigration, Local Ordinances, State Ordinances, Immigrants, Preemption