Under the U.S. Constitution, the power to regulate immigration is exclusively a federal power. Exercising that power more than 20 years ago with the passage in 1986 of the Immigration Reform and Control Act (“IRCA”), Congress established a complex, carefully-balanced, nationally-uniform and comprehensive federal system for regulating the employment of aliens. That comprehensive federal scheme prohibits the employment of unauthorized aliens and imposes significant, but graduated, penalties on employers who violate the restrictions of that scheme. What IRCA did not and could not predict was increasing demand and opportunities for foreign-born workers in the U.S. economy.
Solving a Problem — Or Creating More?
Trying to fix the perceived “broken” immigration system and responding to vocal and emotional demands for greater immigration enforcement, state and local governments have stepped into the breach to take on the federal government’s job. In 2008 alone, more than 200 immigration-related employment bills were introduced in state legislatures, and 20 laws were passed in 14 states. Those laws impose sanctions on employers that knowingly hire unauthorized aliens, including suspension and loss of business licenses. The laws also require employers to verify employment eligibility using the federal E-Verify system — an experimental, voluntary Internet-based system tied into records maintained by the Department of Homeland Security and the Social Security Administration.
