Employment is at the heart of the controversy surrounding illegal immigration. Employment is both the cause of the vast majority of illegal immigration -- "magnet" is the inevitable metaphor (1) -- and, in the view of those who contend that unauthorized immigrant workers take jobs from and drive down the wages of authorized workers, the harm. (2) For the past thirty-five years, therefore, federal law has penalized the employment of unauthorized immigrants. (3) The practical impact of the federal regime, however, has long been in doubt. In the middle of the last decade, as part of a general tide of subfederal laws addressing immigration, states and localities began to target the employment of unauthorized immigrants through their own laws. These efforts have resulted in an array of litigation in the federal courts, culminating in two recent Supreme Court decisions -- the first two in thirty-five years to address the permissible role of states in regulating unauthorized immigrant employment. (4) The first decision, Chamber of Commerce v. Whiting, (5) upheld an Arizona law that both imposes potentially devastating business-licensing sanctions on employers who knowingly hire unauthorized workers and requires all employers to use an internet-based verification database to determine worker eligibility. The second, Arizona v. United States, (6) struck down an Arizona law that targeted employees themselves by making it a misdemeanor for unauthorized immigrants to work or seek work.
The holdings of Whiting and Arizona -- the former a victory for immigration federalism, the latter a victory for federal primacy -- are certainly compatible in the most basic sense: the decisions do not present conflicting commands to the lower courts. But it is difficult to regard the two cases as embodying a single, consistent approach to statutory preemption. The result is a distribution of enforcement power wholly satisfying to neither side of the debate, but which may make federal legislative reform somewhat less likely, except perhaps as part of truly comprehensive immigration reform.
Section A of this Part explores the history of modern federal and state regulation of immigrant employment. Section B examines the recent efforts by states and localities to regulate immigrant employment and the ensuing litigation that has culminated in Whiting and Arizona. Section C looks more closely at the preemption analysis in these two decisions and struggles to find interpretive coherence. Section D suggests that, although this interpretive dissonance has created a policy landscape that fully satisfies no one, by giving both sides of the debate over immigration federalism some measure of victory, these decisions may make legislative reform addressing immigrant employment marginally less likely. Section E concludes.
A. The Modern History of Immigrant Employment Regulation
Although federal law has long required that aliens receive authorization before they may work -- either by virtue of their immigration status or through individualized permission (7) -- for most of the twentieth century federal law did not require employers to avoid hiring unauthorized workers. (8) The Immigration and Nationality Act (INA) as originally passed in 1952 (9) contained no provision to penalize the hiring of such workers. On the contrary, the Act expressly stated that the general prohibition on harboring aliens did not encompass employment (10) -- an exception dubbed the "Texas Proviso" after the Texas agricultural interests that were dependent on Mexican migrant workers. (11) Nor were unauthorized workers themselves directly penalized, civilly or criminally, though a nonimmigrant alien might jeopardize his permission to remain in the country by engaging in unauthorized employment. (12)
Federal law did not penalize employers of unauthorized workers (or the workers themselves), but it also did not clearly preempt states from establishing their own regimes of employer sanctions. …