MOVING TOWARD SUBFEDERAL INVOLVEMENT IN FEDERAL IMMIGRATION LAW * Ryan Terrance Chin In Chamber of Commerce v. Whiting, the U.S. Supreme Court decided that state governments could mandate compulsory enrollment in the otherwise voluntary federal E-Verify program. Though it deals primarily with employment of unauthorized workers, this case raises broader questions of the role of federalism in the current immigration regime. State and local entities continue to engage in immigration regulation because of their dissatisfaction with the federal approach and because of the impacts felt at the community levels. Looking to both the history of subfederal predominance and the current de facto tolerance of subfederal involvement provide perspective on the benefits of a system that contemplates a larger subfederal role. Using that as a launching point, this Comment proposes a new juridical approach in the hopes of allowing for greater subfederal involvement while protecting federal and individual interests. INTRODUCTION ............................................................................................................. 1860 I. THE E-VERIFY CASES AND THE DIVERGENT PREEMPTION STANDARDS ............... 1865 A. The Continuing Vitality of De Canas and Its Definition of Immigration Regulation ............................................................................ 1866 1. Approach 1: IRCA Overrules De Canas and Brings Employment of Undocumented Immigrants Into Federal Immigration Regulation ........................................................................ 1867 a. Chamber of Commerce v. Henry/Chamber of Commerce v. Edmondson ............................................................ 1868 2. Approach 2: Explicit Preemption: IRCA Wholly Occupies Regulation of Undocumented Workers ................................................ 1869 a. Lozano v. City of Hazleton .............................................................. 1869 3. Approach 3: Explicit Authorization: Finding a Presumption Against Preemption ............................................................................... 1870 a. CPLC v. Napolitano ........................................................................ 1871 b. Gray v. City of Valley Park ............................................................. 1873 B. Subconstitutional Norms in Subfederal Immigration Law .......................... 1874 C. A Comprehensive Reading of the E-Verify Cases ....................................... 1877 * J.D., 2011, UCLA School of Law. I would like to thank my advisor, Hiroshi Motomura, for his tremendous guidance and advice. I would also like to express my gratitude for all of the support and encouragement from my professors, friends, and family. A special thanks to Feather Moy-Welsh, Phil Rucker, and Nicholas Woo for their feedback and advice. And, of course, a big thanks to the editorial staff of the UCLA Law Review. 1859 1860 58 UCLA LAW REVIEW 1859 (2011) II. THE HISTORY AND DEVELOPMENT OF IMMIGRATION LAWS ................................ 1881 A. Pre-1875 State Immigration Regulations ..................................................... 1882 B. The End of Slavery and the Rise of the Federal Immigration Power as a Mechanism of Racial Domination ......................................................... 1886 III. VISIONS OF CONTEMPORARY SUBFEDERAL IMMIGRATION REGULATIONS .......... 1889 A. “Neutral” Regulations With an Impact on Immigration ............................. 1891 1. The Role of Community in Immigration Law ...................................... 1893 2. The Federal Immigration Power in Conjunction With Local Zoning Powers ........................................................................................ 1895 a. Modern-Day Examples ................................................................... 1895 b. Historical Development of the Zoning and Immigration Powers ................................................................ 1896 B. “Direct” Subfederal Regulation ..................................................................... 1899 C. “Indirect” Subfederal Regulations That Implicate the Federal Immigration Scheme ..................................................................................... 1902 1. Immigration Regulation Through Education Regulation .................... 1903 D. Understanding Our System as an Integration of Federal and Subfederal Powers ................................................................................... 1905 IV. A NEW ANALYTICAL FRAMEWORK ...................................................................... 1906 CONCLUSION ................................................................................................................. 1911 INTRODUCTION The rising frustration with the federal government’s policy on immigra- tion regulation is exemplified by the recent controversy surrounding Arizona Senate Bill 1070 (SB 1070). On April 13, 2010, the Arizona state House of Representatives passed SB 1070, which quickly became regarded as “the toughest measure in the country against illegal immigrants” because of its directive forcing local police to determine the immigration status of any indi- vidual they reasonably suspected was undocumented.1 All cities and agencies are required to comply with the bill and a citizen suit provision exists to compel performance.2 Many immigrants’ rights advocates were concerned that the bill would effectively sanction and mandate racial profiling.3 Nevertheless, Arizona state lawmakers defended the bill on the grounds that it regulated crime, kidnapping, drugs, and the use of social welfare programs.4 The bill received 1. Nicholas Riccardi, Arizona Passes Strict Illegal Immigration Act, L.A. TIMES, Apr. 13, 2010, at A1, available at http://articles.latimes.com/2010/apr/13/nation/la-na-arizona-immigration14-2010 apr14. 2. Id. 3. See, e.g., id. (citing Chris Newman, legal director of the National Day Laborer Organizing Network). 4. Id. (citing John Kavanagh, Representative for Arizona). Toward Subfederal Immigration Law 1861 national media attention and placed immigration reform squarely in both the legal and public discourse.5 In turn, at least eighteen states and localities have considered measures similar to SB 1070.6 This Comment argues that the preva- lence of subfederal7 involvement in immigration regulation reflects the failures of the current immigration regime to address local interests. As a response, this Comment explores ways to alter the current system to better construct a judi- cial model that seeks to provide greater consistency and clarity in the context of federal preemption of subfederal immigration regulation. Since 2007, there has been a significant increase in local legislation concerning immigration.8 This increased subfederal involvement in immigra- tion regulation is a response to a federal regime that is widely believed to inadequately address local concerns.9 The validity of such regulation is legally complex because the U.S. Supreme Court has traditionally granted the federal 5. The Obama administration challenged the Arizona law in federal court. On July 28, 2010, a federal district court issued a preliminary injunction against the most controversial provisions of the law. The governor of Arizona immediately stated her intention to appeal the ruling. See Randal C. Archibold, Judge Blocks Arizona’s Immigration Law, N.Y. TIMES, July 28, 2010, at A1, available at http://www.nytimes.com/2010/07/29/us/29arizona.html?_r=2&scp=1&sq=judge%20arizona&st=cse. The talk surrounding the law has also been a point of national public discussion. See, e.g., Huma Khan, Immigration Debate: Number of City, State Bills Relating to Immigration Increase, ABC NEWS, Aug. 2, 2010, http://abcnews.go.com/Politics/immigration-debate-number-city-state-bills-relating- immigration/story?id=11220316. 6. The Associated Press reports that as many as eighteen states have expressed a desire to enact similar measures. See Bob Christie, Arizona Preparing Appeal of Immigration Ruling, WASH. TIMES, July 29, 2010, http://www.google.com/hostednews/ap/article/ALeqM5hZ8Gy51rOgX8-wDT3iq TGWw1uLiAD9H8O1A80. The National Conference of State Legislatures similarly reports that six states—Illinois, Michigan, Minnesota, Pennsylvania, Rhode Island, and South Carolina—introduced bills similar to SB 1070. NAT’L CONFERENCE OF STATE LEGISLATURES, 2010 IMMIGRATION-RELATED LAWS AND RESOLUTIONS IN THE STATES 1 (2010), available at http://www.ncsl.org/documents/immig/ 2010immigrationreport.pdf. 7. This Comment uses the word subfederal to refer to state and local government entities in contrast with the federal government. 8. See NAT’L CONFERENCE OF STATE LEGISLATURES, 2009 STATE LAWS RELATED TO IMMIGRANTS AND IMMIGRATION JANUARY 1–DECEMBER 31, 2009 (2009), available at http:// www.ncsl.org/default.aspx?tabid=19232 (finding the number of state laws enacted growing from 84 in 2006, to 240 in 2007, to 206 in 2008). 9. See Chicanos Por La Causa, Inc. v. Napolitano (CPLC), 544 F.3d 976, 979 (9th Cir. 2008) (stating that the challenged law reflected “rising frustration with the United States Congress’s failure to enact comprehensive immigration reform”), aff’d sub nom. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011); Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALB. L. REV. 179, 181 (2005) (advocating local enforcement because it aids federal enforcement); Cristina M. Rodríguez, The Significance of the Local in