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Federal vs. State Immigration Laws

Immigration is regulated at the federal level, chiefly under the rules established in 1952 with the passage of the Immigration and Nationality Act (INA). The Immigration Reform and Control Act (IRCA) of 1986 was enacted to curb illegal immigration, denying welfare benefits to undocumented immigrants and strengthening sanctions against employers who hire them.

The U.S. Congress has control over all immigration-related regulations, while the White House is in charge of enforcing immigration laws.

Jurisdiction and the Supremacy Clause

The federal government's jurisdiction over immigration law has consistently been upheld by the U.S. Supreme Court, which has overruled attempts by state legislatures to single out immigrants. Additionally, the Supremacy Clause of the U.S. Constitution is generally interpreted to mean that federal laws trump state laws, except for certain matters constitutionally left to the states.

However, many states have passed legislation that limits undocumented immigrants' access to public benefits, directs state and local police to check the legal residence status of arrestees and other directives that affect immigrants. Lawmakers pressing for immigration-related state laws typically cite a lack of federal enforcement and the need to conserve limited state resources, while some cite security concerns.

But are such state laws constitutional? While state lawmakers have articulated a genuine interest in limiting illegal immigration, there is no clear line in the sand. See State Immigration Laws for a regularly updated, state-by-state directory.

Immigration Laws at the State Level

Perhaps the most notorious state attempt at regulating immigration is Arizona's S.B. 1070, signed into law in 2010. The U.S. Dept. of Justice (DOJ) stated in a brief that Arizona lawmakers "crossed a constitutional line" with the new law. A federal judge blocked four of the most controversial elements, including the requirement that police check the immigration status of anyone they stop or suspect is in the state illegally.

Other states have passed laws with similar police directives, including Oklahoma and Utah. In addition to enforcement measures, many of the state laws addressing immigration mandate the use of E-Verify to check the employment eligibility of job applicants; require identification for voting purposes and impose restrictions on public benefits, such as food stamps and non-emergency medical care at state clinics.

Pending legislation in Arizona and Indiana directly challenge the 14th Amendment's provision granting automatic citizenship to those born on U.S. soil. Proponents of such laws argue that the amendment's interpretation should be narrowed to exclude children who are born in the U.S. to undocumented immigrants, positioning their controversial bills for eventual review by the U.S. Supreme Court.

Challenges to State Immigration Laws

Nearly all state laws affecting immigration are challenged either through litigation by immigrants' rights and civil liberties groups or by the federal government. Provisions that require proof of citizenship or legal residence, in addition to directives for law enforcement to check the immigration status of those deemed "suspicious," have prompted lawsuits over perceived racial profiling. Critics say laws requiring a photo ID for voting, meanwhile, violate the Voting Rights Act of 1965.

A lawsuit by the South Carolina Hispanic Leadership Council and other parties against the state of South Carolina alleges the state's latest immigration law (S.B. 20) is unconstitutional. Among its grievances, plaintiffs claim the law's enforcement provision violates the U.S. Constitution's guarantee of equal protection and due process. The law requires state and local police to check the immigration status of any individual who is stopped.

Plaintiffs make the following claim in their complaint:

Individuals perceived as "foreign" by state or local law enforcement agents will be in constant jeopardy of harassment and unlawfully prolonged detention and arrest.

The federal government has challenged many of these state laws on the basis of jurisdiction, claiming that a "patchwork" of different immigration laws would not fix the country's immigration system. A DOJ brief accompanying its challenge of the Arizona law included the following statement:

Setting immigration policy and enforcing immigration laws is a national responsibility. Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.

A recently enacted Alabama law, considered similar to Arizona's S.B. 1070, also was reviewed in a federal court but the judge upheld the provision requiring legal status checks during routine traffic stops. Since another federal judge blocked a similar provision in Arizona's law, U.S. Supreme Court review is more likely.

This is a constantly evolving area of law that is far from settled.

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