Preemptive Strike: The Battle for Control Over Immigration Policy – An Examination of the Ninth and Tenth Circuits Split Over Federal and State Authority in Regulating Immigration
22 Pages Posted: 26 Nov 2010 Last revised: 29 Jan 2013
From its inception, the United States has had a difficult and dichotomous relationship with immigration and the subsequent questions of citizenry and legality that it renders. Today has proven to be no different. Parties both for and against the expansion or exclusion of the United States’ current immigration policy continue to battle one another to a stalemate during every election cycle, impeding the other’s abilities to enact change. It is this perpetual inaction by the federal government that has led numerous state governments, in their individual capacities, to enact legislation intended to either supplement or enhance current federal statutes and regulations related to immigration. This paper focuses primarily on the recent conflicting opinions issued by the Ninth and Tenth Circuits, determining whether state legislatures are preempted from imposing their own illegal immigration penalties by revoking the licenses of businesses that knowingly hire illegal aliens as employees. This split between the Ninth and Tenth Circuits remains an untenable point of contention and must be resolved. The Supreme Court recently granted certiorari to hear an appeal of the Ninth Circuit decision later this coming year, but this paper will demonstrate that the Ninth Circuit was correct to conclude that states may impose separate civil sanctions upon employers who violate immigration statutes, and in doing so will not hinder, supersede, or preempt federal sovereignty.
Keywords: Immigration, Preemption Clause, Supremacy Clause, Tenth Amendment, Ninth Circuit, Tenth Circuit, Employment Law, Labor Law
JEL Classification: K00, K4, K40, K41, K42, K1, K10, K14, K19, J7, J78
Suggested Citation: Suggested Citation