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Kevin R. Johnson

excerpted from: Kevin R. Johnson, Immigration and Civil Rights: State and Local Efforts to Regulate Immigration, 46 Georgia Law Review 609 (Spring, 2012) (120 Footnotes Omitted)


For well over a century, immigration law, and its enforcement in the United States, has been the primary province of the federal government. More than 150 years ago, for example, the Supreme Court invalidated Massachusetts and New York laws that taxed passengers who arrived at their ports on the ground that they intruded on the power of Congress to regulate interstate commerce. Congressional efforts in the late 1800s to drastically curtail Chinese immigration marked the near-complete federalization of immigration law and general displacement of state and local regulation. In modern times, state and local governments, generally speaking, cannot directly regulate immigration, such as by denying admission into the state or deporting people from their jurisdiction.

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. In the 1976 decision of De Canas v. Bica, the Court unequivocally stated that the [p]ower to regulate immigration is unquestionably exclusively a federal This is expansive language extolling federal power. Nonetheless, in that same case, the Court rejected a federal preemption challenge to a California law imposing fines on employers of undocumented immigrants. The decision left vague the outer limits of what a state can do when it comes to regulating immigration and immigrants without encroaching on federal power.

A decade after the Supreme Court decided De Canas, Congress intervened and narrowed the role of the states in seeking to regulate the employment of undocumented immigrants. In 1986, Congress passed the Immigration Reform and Control Act (IRCA), a multifaceted piece of immigration reform legislation that, among other things, provides for the imposition of sanctions on the employers of undocumented immigrants. IRCA states that it preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized

Often a political trendsetter, California, more than fifteen years ago, offered the nation a famous modern example of a state unsuccessfully seeking to regulate immigration. In 1994, the Golden State's voters overwhelmingly passed Proposition 187, which was similar in certain respects to Arizona's S.B. 1070. The measure, among other things, would have required governmental employees to report suspected undocumented immigrants to U.S. authorities. A federal court struck down most of the initiative for impermissibly intruding on the federal power to regulate immigration. Although not factoring directly into the court's preemption analysis, the controversial campaign for the measure was replete with anti-immigrant, anti-Mexican sentiment. Moreover, the proposition unquestionably would have had disparate racial impacts if it had gone into effect.

Today, observers spanning the ideological spectrum, including President Barack Obama, contend that the current U.S. immigration system is broken. A 2010 report estimated that approximately eleven million undocumented immigrants live in the United States. Many point to the size of the undocumented population, which has tripled since 1990, as evidence that IRCA's employer-sanctions provisions have failed to meaningfully deter the employment of undocumented immigrants. Besides being ineffective, sanctions also have arguably had negative collateral civil rights consequences, including increasing discrimination by employers against U.S. citizens and lawful permanent residents of certain national origins.

Despite efforts for more than a decade and a plethora of reform proposals, Congress has been unable to pass a comprehensive immigration reform package to remedy the perceived deficiencies in the current system. Over the same general time period, Latina/o immigrant communities have emerged in parts of the United States, including in the Midwest and South, which had not previously seen significant Latina/o migration. State and local governments also have experienced tremendous budgetary pressures, which have worsened with the onset of what some observers have called the Great Recession.

These developments-the general view that the current U.S. immigration system is broken (and the corollary that the federal government has failed to enforce the immigration laws), the changing regional demographics of immigration, and ever-tightening state and local budgets-in combination have contributed to the enactment of a record number of state and local immigration laws. Often in response to considerable anti-federal government sentiment, the Alabama, Arizona, Georgia, and South Carolina legislatures passed strict immigration enforcement laws in just the past few years. The editorial page of the New York Times stated bluntly that the new anti-immigrant laws are cruel, racist[,] and

Unfortunately, there is a long history of state and local laws that discriminate against immigrants. For example, the alien land laws popular in many states, but especially the West, in the early twentieth century, sought to discriminate against particular groups of immigrants (specifically those from Japan) through facially neutral means. Many immigrant and civil rights advocates contend that the modern state and local immigration laws have discriminatory impacts, if not invidious purposes.

None of this is to suggest that immigration regulation at the federal level does not also have civil rights impacts. The U.S. government, historically as well as in modern times, has taken actions that some observers contend trample on the civil rights of immigrants. The operation and enforcement of U.S. immigration laws has civil rights-and often racially disparate-impacts.

My point here is that federal primacy over immigration does not mean that civil rights concerns disappear from the field just because the federal government is regulating immigration. Current heated controversies over various federal immigration enforcement programs belie such a claim. However, the potential civil rights deprivations at the state and local levels are likely to be greater because of the fact that nativist and racist sentiments are more likely to prevail. Such sentiments are more likely to dominate local politics than the political process at the national level.