LibGuides: Tapia, Martin: Home

Introduction

Welcome everyone!

My name is Martin Tapia. I am a 3L student at Ave Maria School of Law. This research guide is designed to provide with some introductory information on the relation between the preemption clause of the U.S. Constitution and Immigration law. Specifically, why most state laws regulating immigration matters are frequently struck down by federal courts.

The U.S. Supreme Court ("Court") has ruled that “the authority to control immigration… is vested solely in the Federal government.” Traux v. Raich, 239 U.S. 33, 42 (1915). As the exclusive power to regulate immigration is vested in the federal government, it is assumed that all states laws regulating immigration are displaced by federal law. In this regard, the primary federal immigration statute is the Immigration and Nationality Act (“INA”), which is codified in Title 8 of the United States Code.Thus, the Court has stricken down numerous state laws because they attempted to regulate immigration. Furthermore, the Court has held that “State[s] may not pursue policies that undermine federal law.” Arizona v. United States, 132 S. Ct. 2492, 2510 (2012).

However, the Court has also held that not all state laws regulating aliens are automatically invalid: “the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” De Canas v. Bica, 96 S. Ct. 933, 936 (1976). Thus, in case wherein a state or local government enacts a law which might be immigration-related, this law may not be unconstitutional as it would not be preempted by federal.

One of the most recent cases is the Arizona v. United States, 132 S.Ct. 2492 (2012), where the Court, after striking three sections based on preemption grounds, did not strike a fourth section of the Arizona statute authorizing state law enforcement officers to investigate a suspect's immigration status. Furthermore, the Court has also ruled that the Federal government power over immigration is not too broad as some states statutes indirectly regulating immigration have survived constitutional challenges.

Therefore, as federal immigration law does not always preempt state laws touching immigration matters, this research guide will provide some material to determine when the preemption clause of the U.S. Constitution permits federal laws trump over state laws.

Statutes

The U.S. Constitution contains the Supremacy Clause, which mandates that federal law preempts state law. Also, the U.S. Constitution vests the Federal Congress with the power to regulate the naturalization process.

The Immigration and Nationality Act is the primary federal law regulating the immigration law in the United States.

U.S.C.A. Const. Art. VI cl. 2
Clause 2. Supreme Law of Land
U.S.C.A. Const. Art. I Sec. 8, cl. 4.
Clause 4. Naturalization and Bankruptcy.
Immigration and Nationality Act of 1952.
Federal statute which governs immigration and citizenship in the United States.

Legislative History

No legislative history on the U.S. Constitution. However, the Immigration and Nationality Act (INA) of 1952 does have some legislative history..

Message from the President of the United States returning without approval the bill H. R. 5678 (INA 1952).
To revise the laws relating to immigration and nationality, for other purposes.
Conference report to accompany the bill H. R. 5678 (INA 1952).
Conference report.
The major debates at the Constitutional Convention
Useful information by the Constitutional Rights Foundation.

Case Law

Traux v. Raich, 239 U.S. 33, 42 (1915)
U.S. Supreme Court ruled that the authority to control immigration is vested solely in the Federal government.

Arizona v. United States, 132 S.Ct. 2492 (2012)
U.S. Supreme Court ruling striking down the Arizona Bill No. SB 1070 based on preemption.
DeCanas v. Bica, 424 U.S. 351 (1976)
The U.S. Supreme Court held that the power to regulate immigration is unquestionably exclusively a federal power.
Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (2011)
The U.S. Supreme Court held that the Arizona's licensing law was not preempted by federal law because it was within the scope Congress to opt to leave to the states to regulate licensing. Also, IRCA a federal law expressly reserves to the States the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws.

Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250 (2012)
Appellate Court affirmed in part, reversed in part, and remanded a lower court ruling preliminarily enjoining two sections of a Georgia Act on ground that each was preempted by the Immigration and Nationality Act (INA).
Ricketts v. Palm Beach County Sheriff, 985 So.2d 591 (2008)
Plaintiff's petition of habeas corpus before a Florida court was denied based on preemption grounds. The petitioner was an alien and the State court lacked jurisdiction over him.

Jacobson v. Massachusetts, 197 U.S. 11 (1905)
The U.S. Supreme Court recognized traditional police powers of the states are health, education, safety, and welfare of their citizens.
State of California v. United States, 104 F.3d 1086 (1997)
Court of Appeals affirmed lower court's order granting motion to dismiss as implementation of immigration law did not affect California.

Secondary Sources

Putting States Out of the Immigration Law Enforcement Business
Based on the doctrine of preemption, courts struck down state laws indirectly regulating immigration matters. The author proposed that "immigration law enforcement should be left to the federal government and that states
should limit their actions to coordination with federal authorities only."

Aliens and Preemption
In the exercise of its powers, Congress may preempt state courts from exercising jurisdiction over immigration matters, or it may preempt state legislatures from substantively regulating on matters touching upon immigration.
Preemption of State Statute, Law, Ordinance, or Policy with Respect to Law Enforcement or Criminal Prosecution as to Aliens
Some states have passed statutes criminalizing individuals based their status as aliens. However, these state statutes may be challenged on grounds that they are preempted by federal law under the Supremacy or Commerce clauses of the United States Constitution.

Immigration law sourcebook by American Bar Association
ISBN: 9781627229562
Publication Date: 2015

Field Preemption
Corpus Juris Secundum
Georgetown Immigration Law Journal
Law journal dedicated to the advancement of legal knowledge in the field of immigration law.
Preemption
Virginia Law Review
Preemption doctrine
Corpus Juris Secundum
Unmasking the presumption in favor of preemption
South Carolina Law Review

Preemption, Patchwork Immigration Laws, and the Potential For Brown Sundown Towns
"Broad federal preemption analyses alter the traditional scope of the states’ police powers."
Immigration preemption after Arizona v. United States
The impact of the case on the preemption doctrine and its relation with immigration law.

Kevin R. Johnson, Immigration and Civil Rights: State and Local Efforts to Regulate Immigration, 46 Georgia Law Review 609 (Spring, 2012)
Article states that "despite unquestionable federal supremacy in the field, the Supreme Court has reserved room for states to regulate immigration, even though it has not been especially clear about how much room there is."

Administrative Law

Federal Register
The official daily publication of the rules, proposed rules, and notices of Federal agencies.
USCIS Administrative Appeal Office
The Administrative Appeal Office (AAO) generally issues non-precedent decisions on immigration matters before the USCIS.

Court Rules

Rules of the U.S. Supreme Court
Rules of Court.
Rules of the U.S. Eleventh Court of Appeals
Rules of Court.
Rules of the U.S. Middle District of Florida
Rules of Court.
Board of Immigration Appeals Practice Manual
Court Rules for immigration appeals before the Department of Justice.
Immigration Court Practice Manual
Court rules for immigration cases before immigration judges.

Pleadings

Mannschreck v. Board of Regents of the University of Nebraska
Complaint claiming Federal statutes governing immigration or educational benefits preempt any inconsistent state laws, through the operation of the Supremacy Clause of the U.S. Constitution.
Airplane Owners & Pilot Association v. Granholm
Answer to Motion for Preliminary Injunction. The answer claims there is no preemption.

Practitioner Materials

American Jurisprudence Pleadings and Practice Forms Annotated

Forms

Complaint with a count for preemption claim
Federal Procedural Form
Motion for Summary Judgment On Grounds Of Preemption
Federal Procedural Form
Affirmative Defense Of Preemption By Federal Law
Complaints and Answers
American Jurisprudence Legal Forms
Legal Forms

DIsclaimer

No Legal Advice Provided

The material on this research guide’s website is intended to provide only general information and comment to the public. This research guide is created for educational purposes only. Do not, under any circumstances, rely on information found on this website as legal advice. For assistance with your specific legal problem or inquiry please contact a knowledgeable lawyer, who practices in your area of need and would be pleased to determine whether she or he can assist you. The State Bar Association is ordinarily a good source for referrals for competent attorneys.

No Lawyer-Client Relationship Created

No attorney-client relationship is formed by this guide's website nor should any such relationship be implied. In addition, any information sent by email through the internet is not confidential and does not create a lawyer-client, advisory, or fiduciary, relationship.