There is no question that immigration regulation is primarily a national issue. The federal government regulates when people can come into the country, how long they can stay, and what they can do while they are here. The United States Supreme Court has continually reaffirmed Congress's plenary power to create and regulate immigration laws. Any comprehensive immigration reform law must come from Congress. The recent laws passed by Arizona, Georgia, and Alabama cannot be classified as immigration reform laws. Instead, these are immigration "related" laws. The question then becomes just how far can the states go in passing laws that are related to immigration? Unfortunately for the state legislatures, there is no bright-line answer, but the courts' adjudicative challenges to these state laws have started to provide some clarity. So far it seems the states are allowed to focus immigration statutes in areas where they have traditional police powers, as to whether states may enforce federal immigration law through their police powers and what type of role the states have in shaping foreign policy.
Ultimately, it seems that the states have a limited role in passing immigration-related laws, especially ones that interfere with federal immigration law. This Comment attempts both to explain why the states are so limited in their ability to pass immigration-related laws and to examine alternative options the states do have to participate in combating illegal immigration. Part II discusses generally what role the federal government plays in creating and enforcing immigration law. Part II also discusses what role the states can play in enforcing immigration policy. Part III addresses why it will be difficult for states to overcome the preemption doctrine. Generally, the preemption doctrine is used by the courts to analyze whether federal and state laws can coexist. Because the United States Constitution establishes that laws passed by Congress are the supreme law of the land, courts must strike down a state law if it conflicts with federal law. Part III also examines why state level immigration laws are inconsistent with both established police powers and foreign policy jurisprudence. Part IV discusses what types of immigration-related laws the states are legitimately able to pass. In addition, Part IV analyzes current developments in the relationship between the United States Department of Homeland Security and state level police officers while encouraging more cooperation between the federal and state governments.
"Aliens in a Foreign Field: Examining Whether States have the Authority to Pass Legislation in the Field of Immigration Law,"
Mercer Law Review: Vol. 63:
3, Article 18.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol63/iss3/18