NCJ Number
105967
Journal
University of Miami Law Review Volume: 41 Issue: 5 Dated: (May 1987) Pages: 999-1024
Date Published
1987
Length
26 pages
Annotation
The Federal Immigration and Naturalization Act (INA) and the supremacy clause should be construed by the courts to prohibit State and local arrests of undocumented aliens.
Abstract
State laws grant local police the authority to arrest persons who violate Federal criminal law, including the criminal immigration statutes. Courts upholding State enforcement have ruled that, in the absence of a limitation, Federal criminal law becomes the law of the land, and States are bound by the supremacy clause to enforce it. The Constitution assigns immigration power to the Federal Government, and this power should not fall to the States absent express constitutional delegation. Yet two courts mechanically applying the preemption standards have concluded that Federal authority does not preempt a direct State regulation of immigration. This result is due both to the insensitivity of the preemption doctrine to Federal interest in the immigration context and to the courts' failure to distinguish between direct and indirect interference with a substantive Federal power. The preemption standard should be modified to protect Federal interests when the States have no independent and primary police power interest. This would help ensure that State and local police interventions do not hinder the Federal interest in uniform immigration enforcement. 119 footnotes.