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State and Local Regulation of Immigration: The Need for a Bilateral (Reciprocal) Ratchet

31 Pages Posted: 25 Jul 2011 Last revised: 4 Jun 2013

David P. Weber

Creighton University - School of Law

Date Written: July 25, 2011


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This essay proposes a broader approach regarding pro-immigrant subfederal regulation in order to level the current legislative playing field. This essay examines the three 2011 Supreme Court actions on immigration in Whiting, Martinez and Hazleton. Under the current preemption approach, supported by many who reasonably fear unharnessed subfederal discrimination against immigrants, Congress has granted states the right to act in this field exclusively in a pro-enforcement direction. Rather than allow only pro-enforcement proposals, a more flexible approach in examining how to view preemption should be used to grant states the ability to generate more adaptable, varied approaches to the issue of unauthorized immigration.

Keywords: federalism, preemption, pre-emption, immigration, s.b. 1070, sb 1070, state, local, subfederal, regulation, Whiting, Martinez, Hazleton, L.B. 48, Fremont, Arizona

JEL Classification: K14, K23, K42

Suggested Citation

Weber, David P., State and Local Regulation of Immigration: The Need for a Bilateral (Reciprocal) Ratchet (July 25, 2011). ILSA Journal of International & Comparative Law, Vol. 18, No. 3, 2013. Available at SSRN: or

David P. Weber (Contact Author)

Creighton University - School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402 280 3334 (Phone)

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