Immigrant Laws, Obstacle Preemption and the Lost Legacy of McCulloch

56 Pages Posted: 19 Dec 2011 Last revised: 18 Jun 2012

See all articles by Lauren Gilbert

Lauren Gilbert

St. Thomas University College of Law

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Date Written: April 30, 2012


With the federal government's perceived failure to enforce the immigration laws as a backdrop, this paper explores how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. The third is a tendency to no longer explicitly apply the presumption against preemption, and in some cases, to do exactly the opposite: presume preemption.

The Court’s decision in Whiting is a harbinger of things to come, as challenges to state and local laws regulating immigrants make their way to the Court and a growing number of states adopt their own versions of Arizona’s S.B. 1070 and the Legal Arizona Workers Act. I first offer an overview of preemption jurisprudence, focusing on the nearly-forgotten legacy of McCulloch v. Maryland in planting the roots of obstacle preemption. I also examine recent case law showing a tendency on the Court’s part to substitute impossibility and obstacle preemption with a “direct conflict” or “logical contradiction” test. I then address the implications for S.B. 1070 and state and local copycat laws of the Supreme Court’s and lower federal courts’ apparent willingness to uphold state laws modeled after federal law when enacted to redress a gap in federal enforcement.

I conclude that the Supreme Court’s adoption of a new direct conflict test as the standard for conflict preemption would be a dramatic paradigmatic shift that would provide lower courts with the means to uphold state and local laws regulating immigrants and immigration to the extent that these laws track federal enforcement measures.

Keywords: S.B. 1070, copycat legislation, preemption, immigration

Suggested Citation

Gilbert, Lauren, Immigrant Laws, Obstacle Preemption and the Lost Legacy of McCulloch (April 30, 2012). Berkeley Journal of Employment and Labor Law, Vol. 33, No. 1, p. 153, 2012, Available at SSRN:

Lauren Gilbert (Contact Author)

St. Thomas University College of Law ( email )

16401 NW 37th Ave.
Miami Gardens, FL 33054
United States
305-623-2386 (Phone)


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