Whether State-Propounded Employment-Based Immigration Regulations Are Surviving Preemption Challenges—A Look at Whiting and Arizona

Abstract

While states and the federal government are engaging in unprecedented preemption fights in courts all over the country regarding state-propounded immigration laws, the jurisprudential pattern that appeared to be emerging on the employment front was made clearer in two recent decisions by the United States Supreme Court. The Court’s decisions in Chamber of Commerce v. Whiting and Arizona v. United States appear to delineate how states or municipalities may participate in the aim to curtail the employment of undocumented immigrants by enacting or enforcing employment-related immigration laws. Although legislators, through recent omnibus state and municipal legislation, have attempted a number of tactics to control (and often criminalize) the activities of undocumented immigrants, many of those attempts have been curbed by the courts. Employment, however, is emerging as an area ripe for legislation, so long as the local authorities are working in cooperation with the federal government. This Article explores the Court’s opinions in Whiting and Arizona and the potential guidance they provide in the highly polarized immigration debate.