Nathan G. Cortez (Southern Methodist University – Dedman School of Law) has posted The Local Dilemma: Preemption and the Role of Federal Standards in State and Local Immigration Laws (Southern Methodist University Law Review, Vol. 47, p. 61, 2008) on SSRN. Here is the abstract:
The recent flurry of state and local laws targeting immigration forces us to confront what role, if any, sub-federal governments should play. Our federalist system has carved out an amorphous role for sub-federal governance. Despite decades of pronouncements from the legislative, executive, and judicial branches, the role of state and local governance remains stubbornly undefined, teetering between permissible exercises of authority to regulate education, employment, and other traditional state concerns, and impermissible encroachments on the near-exclusive federal authority to regulate immigration.
A line of cases beginning with DeCanas v. Bica has held that certain state laws may distinguish between classes of immigrants only if states adhere to federal immigration standards. The recent wave of state and local laws has placed great faith in the ability of state and local government employees – and even private citizens – to determine immigration status by adhering to federal standards without deviating from those standards or creating their own in violation of the Supremacy Clause.
I use the decisions in Equal Access Education v. Merten to illustrate the dangers of this approach, applying this framework to recent local ordinance cases. I conclude that state and local laws should not avoid federal preemption simply by citing to or relying on federal immigration standards absent a clear finding that state or local agents will not systematically misapply federal standards. Determining immigration status should be the sole province of the federal government.