Federal Preemption and Immigrants' Rights
McKanders, Karla Mari
Recently, immigration scholars have focused on the relationship between federal, state, and local governments in regulating immigration to the exclusion of civil rights issues. States and localities assert that they should be able to use their Tenth Amendment police powers to regulate unauthorized immigrants within their borders, while the federal government claims exclusivity in the area of immigration law and policy. In the middle of this debate, there is the question of whether states abrogate individual civil rights and civil liberties when exercising their police powers to regulate immigration. This article takes a detailed look at these complex issues of federalism and individual rights in the context of immigration regulation. The first section of the paper is an overview of Arizona’s S.B. 1070 and copycat legislation, which require state and local law enforcement to make a determination regarding a person’s immigration status when reasonable suspicion exists that the person is unlawfully present. The second section critiques the notion of providing states and localities unfettered discretion to determine the immigration status of individuals during routine stops. This section examines the implications of a policy where states, as sovereigns, are given the power to regulate immigration within their borders. The last section analyzes why equal protection challenges under the Fourteenth Amendment have not been raised to challenge laws providing state and local officials with the power to make immigration determinations. It specifically examines the Arizona case, Valle de Sol v. Arizona, and how equal protection claims were raised in response to the Show Me Your Papers Provisions of S.B. 1070.