No Exception to the Rule: The Unconstitutionality of State Immigration Enforcement Laws

Author(s): 
Pratheepan Gulasekaram
Publication Date: 
October 4, 2011

ACS is pleased to distribute “No Exception to the Rule: The Unconstitutionality of State Immigration Enforcement Laws,” an Issue Brief by Pratheepan Gulasekaram, Assistant Professor of Law at Santa Clara University School of Law, in which the author looks forward to the likely occurrence that the Supreme Court will review the constitutionality of the controversial Arizona immigration law, SB 1070. In comparing SB 1070 with the Legal Arizona Workers Act, which was the subject of the Supreme Court’s decision last term in Chamber of Commerce v. Whiting, Gulasekaram contends that the Court’s decision upholding LAWA does not dictate an answer, nor even shed light on how the court will rule in a review of SB 1070. As the Issue Brief explains, “viewed at the highest level of generality, LAWA and SB 1070 are both state laws intended to discover and disincentivize the presence of undocumented immigrants. However, state business licensing penalties that punish employers are necessarily different than state criminal immigration laws that punish undocumented immigrants and seek to achieve ‘attrition through enforcement.’” Gulasekaram thus concludes: “[W]hile Whiting may be a welcome sign for sub-federal entities desirous of using legal sanctions to discourage local businesses from hiring unauthorized workers, it does not otherwise alter the division of power between the nation and states vis-à-vis immigration policy.”