Cecily Zamora
The US Constitution grants states the power to make decisions on a variety of issues, but when it comes to immigration, the federal government has the final say. This has been a long-standing source of contention between the two levels of government. While states have the option to write and pass legislation, nearly every law proposed to regulate immigrants at a state level has been challenged by litigation groups for civil liberty or the federal government. The federal government argues that immigration policy and enforcement are national responsibilities and that allowing states to regulate immigration would create more problems.
| Characteristics | Values |
|---|---|
| Federal power to regulate immigration | The federal government has broad and exclusive power to regulate immigration, preempting state and local laws that also attempt to do so. |
| State enforcement of federal immigration laws | States can enforce federal immigration laws in specific circumstances, such as detaining immigrants previously convicted of a felony or enforcing the criminal provisions of the INA. |
| State immigration laws | State immigration laws are generally not as powerful as federal immigration laws and are often challenged by litigation groups or the federal government. |
| Civil immigration law enforcement | Civil immigration law enforcement is considered a federal responsibility, and states cannot arrest individuals solely for illegal presence or the purpose of deportation. |
| Federal-state partnerships | The federal government can partner with state and local law enforcement officials to enforce federal immigration priorities. |
| State benefits programs | States that administer federal benefits programs can follow federal rules to determine and verify an applicant's citizenship/alienage status if it is a criterion for eligibility. |
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What You'll Learn
Federal vs. State Immigration Laws
Federal immigration laws in the US carry more weight than state-level laws. The federal government has exclusive power over immigration, and state laws addressing immigration are often preempted by federal law. This is because the federal government views immigration policy and enforcement as national responsibilities.
State laws that tangentially affect immigration, such as employment licensing laws that can be revoked for violations of federal immigration laws, are expressly permissible. For example, federal immigration law allows states to independently regulate the employment of illegal aliens through licensing and similar laws. State and local enforcement efforts cannot, however, impose new or additional penalties upon criminal immigration law violators.
The distinction between civil and criminal violations in the INA suggests a bifurcated role for states and localities. State and local law enforcement officers cannot arrest someone solely for illegal presence for the purpose of deporting them because it is a civil violation, but they can arrest someone for the criminal offense of entering the country illegally. For example, state or local officers can question the immigration status of someone they have detained for a state or local violation and contact an ICE agent at the Law Enforcement Support Center (LESC). The federal agent may then place a detainer on the suspect, requesting the state official to keep the suspect in custody until their immigration status is determined. However, the continued detention of such a suspect beyond the needs of local law enforcement designed to aid in the enforcement of federal immigration laws may be unlawful.
While states have the option to write and pass legislation, nearly every law that has been proposed to regulate immigrants at a state level has been challenged by litigation groups for civil liberty or the federal government.
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State enforcement of the criminal provisions of the INA
Immigration laws are almost always federal, with the government explaining that both immigration policy and enforcement are national responsibilities. The federal government holds exclusive power over immigration, and uniformity in enforcing these rules is critical to the exercise of sovereign authority.
State enforcement of the criminal provisions of the Immigration and Nationality Act (INA) is viewed as consistent with the state's police power to arrest for criminal acts and the expectation that states cooperate in enforcing federal criminal laws. The INA, enacted in 1952, is a comprehensive set of rules for legal immigration, naturalization, deportation, and enforcement. It contains both criminal and civil enforcement measures, and states have traditionally only been permitted to directly enforce certain criminal provisions that fall under their jurisdictions.
The civil provisions of the INA, which include the apprehension and removal of deportable aliens, have been viewed as a federal responsibility, with states playing a supporting role. For example, state and local law enforcement officers cannot arrest someone solely for illegal presence for the purpose of deporting them because it is a civil violation. However, they can arrest someone for the criminal offense of entering the country illegally.
The distinction between civil and criminal violations in the INA suggests a bifurcated role for states and localities. While states have the option to write and pass legislation, nearly every law proposed to regulate immigrants at a state level has been challenged by litigation groups or the federal government.
State and local officials may also have the authority to enforce some federal criminal laws, such as alien smuggling, which is prosecuted in the courts.
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Civil immigration law enforcement
State and local enforcement efforts cannot impose new or additional penalties on criminal immigration law violators. However, they can arrest someone for the criminal offense of entering the country illegally. For example, state or local officers can question the immigration status of someone they have detained for a state or local violation and then contact an ICE agent. The federal agent may then place a detainer on the suspect, requesting that the state official keep the suspect in custody until their immigration status is determined.
The federal government has broad and exclusive power to regulate immigration, and while states have the option to write and pass legislation, nearly every law proposed to regulate immigrants at a state level has been challenged by litigation groups for civil liberty or the federal government. This is because immigration policy and enforcement are seen as national responsibilities, and allowing states to regulate immigration would cause issues and raise tensions.
State laws that tangentially affect immigration, such as employment licensing laws that can be revoked for violations of federal immigration laws, are expressly permissible. For example, federal immigration law allows states and localities to independently regulate the employment of illegal aliens through licensing and similar laws. States that administer federal public benefits programs can also follow federal rules for determining and verifying an applicant's citizenship or alienage status.
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State and local law enforcement
State and local officers can also assist federal immigration enforcement by detaining immigrants previously convicted of felonies and questioning the immigration status of individuals they have detained for state or local violations. If there is uncertainty about an individual's immigration status, officers may contact an ICE agent at the Law Enforcement Support Center (LESC), who may then place a detainer on the suspect, requesting that the state official keep the suspect in custody until their immigration status is determined.
However, it is important to note that the continued detention of an individual solely based on their immigration status may be unlawful. The detention of individuals based solely on their immigration status or for minor offenses as a pretext for verifying their status has been controversial, with critics alleging civil rights abuses.
While states have the power to write and pass legislation, most laws proposed to regulate immigrants at the state level have been challenged by litigation groups or the federal government. The U.S. Supreme Court has ruled that the federal government has broad and exclusive power to regulate immigration, preempting state and local laws that attempt to do so. This power is derived from the Constitution, which grants the federal government exclusive authority over matters concerning the entry and removal of aliens.
In summary, while state and local law enforcement officers have a limited role in enforcing federal immigration laws, particularly in criminal cases, the primary responsibility for immigration enforcement lies with the federal government.
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Federal power to regulate immigration
The federal government has been deemed to have "broad and exclusive power" over immigration laws, and this power preempts state and local laws. This means that state laws that attempt to regulate immigration are often challenged by litigation groups for civil liberty or the federal government.
The federal government's exclusive power over immigration is not without exception, however. For example, federal immigration law expressly allows states and localities to independently regulate the employment of illegal aliens through licensing and similar laws. States that administer federal public benefits programs are also permitted to follow federal rules for determining and verifying an applicant's citizenship or alienage status.
State and local law enforcement officers can also play a role in enforcing federal immigration laws. For example, when state or local officers question the immigration status of someone they have detained for a state or local violation, they may contact an ICE agent at the Law Enforcement Support Center (LESC). The federal agent may then place a detainer on the suspect, requesting that the state official keep the suspect in custody until their immigration status can be determined.
However, it is important to note that the continued detention of such a suspect beyond the needs of local law enforcement designed to aid in the enforcement of federal immigration laws may be unlawful. Additionally, civil immigration law enforcement has generally been viewed as a federal responsibility, with state and local officers precluded from directly enforcing the civil provisions of the INA.
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Frequently asked questions
No, states cannot enforce federal immigration laws. The federal government has exclusive power over immigration laws, and state laws that attempt to regulate immigration are often preempted by federal law.
States have the option to write and pass their own immigration legislation, but nearly every law that has been proposed to regulate immigrants at a state level has been challenged by litigation groups for civil liberty or the federal government.
State and local law enforcement officers can enforce the criminal provisions of the INA if state law permits them to do so. However, they are precluded from directly enforcing the INA's civil provisions. For example, they cannot arrest someone solely for the purpose of deportation as it is a civil violation.
