E.g., 10/25/2014
E.g., 10/25/2014

Testing the Limits: A Framework for Assessing the Legality of State and Local Immigration Measures

Reports
December 2007

Testing the Limits: A Framework for Assessing the Legality of State and Local Immigration Measures

This report provides a framework for assessing the legal validity of state legislative measures that address unauthorized immigration. It looks specifically at state laws that regulate employers who hire unauthorized workers, impose fines on landlords who rent to individuals without lawful status, direct state and local police to participate in immigration enforcement, and require verification of the legal status of those seeking public benefits.

To determine their validity, authors seek to establish whether Congress has expressly preempted the law, and if not, whether these local laws exceed the bounds of their constitutional authority by conflicting or interfering with existing federal regulatory regimes.

The report’s analysis indicates that: many aspects of employment-related laws likely conflict with the federal scheme of employer sanctions; employment measures and landlord regulations likely deprive individuals of property without due process of law; and local antisolicitation ordinances targeted at day laborers infringe on protected speech; however, most laws that deny public benefits to unauthorized immigrants mirror the mandates of federal welfare law. Authors also express grave concern over the participation of state and local police in immigration enforcement—despite limited statutory provisions for such practices—as a threat to constitutional principles and public safety.

Table of Contents 

Introduction

I. State and Local Laws Targeting Employers

A. The Law’s Provisions

B. Applying Preemption Principles to State dand Local Regulation of Employers

II. The Regulation of Landlords

A. The Law’s Provisions

B. Applying Preemption Analysis

C. Due Process Protections

D. Equal Protection Claims

E. State Law Claims

III. The Enforcement of Federal Immigration Law by State and Local Police

A. Direct Enforcement

B. Enforcement Ancillary to Routine Policing

C. The Risk of State and Local Immigration Enforcement

IV. Local Antisocial Ordinances

V. Public Benefits

A. The Federal Legal Landscape

B. The New State Laws