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December 22, 2007

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

From AILA;

"In the wake of Congress' failure in recent years to pass comprehensive immigration reform, state and local governments have taken it upon themselves to try to tackle problems resulting from our nation's broken immigration system. Though the Constitution generally assigns the power to regulate immigration exclusively to the federal government, state and local entities have pounced upon the apparent "wiggle room" provided in recent Supreme Court interpretations regarding the legality of certain state and local attempts to pass immigration related measures. In 2007 alone, for example, the 50 state legislatures considered over 1000 pieces of legislation attempting to regulate immigrants and immigration. Of these measures, at least 156 have become law.

A report released this month by the Migration Policy Institute (MPI), tries to make sense of this jumbled mass of state & local legislation, analyzes these measures as to their legality, and provides a framework for courts to use in order to do the same. According to the report, most of the state and local attempts to regulate immigrants and immigration fall into one of five categories. Given the Constitutional dictum concerning federal jurisdiction over immigration, however, not all of the measures within these categories are legal. The authors of the report provide the following framework of questions for courts to consider in determining whether a given piece of state or local legislation is legal: 1. Has Congress expressly preempted the law?; 2. If not, has Congress ousted state authority by occupying the field in which the state regulates?; and 3. If not, does the state or local law create an obstacle to enforcement of federal law?

Based on this framework, the authors conclude that, in general, the vast majority of state and local attempts to pass immigration-related measures overstep jurisdictional boundaries. A significant and very troubling number deprive individuals of due process rights, and many more raise serious public policy concerns".

To read the report in its entirety, visit the MPI website at; http://www.migrationpolicy.org/pubs/NCIIP_Assessing%20the%20Legality%20of%20State%20and%20Local%20Immigration%20Measures121307.pdf

Posted by VisaLawyer at December 22, 2007 06:44 AM

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