Suppose the state of Texas, disappointed by the US federal government's handling of illegal immigration, decides to enact a law that criminalizes one's illegal presence within the state. Meaning if any non-citizen goes to Texas - or stays in Texas - without permission from the US government to reside within the US, they have committed a violation of the aforementioned statute. Under this statute, a county/state prosecutor would be authorized to pursue a charge for a violation of the statute if, and only if, he has enough evidence to do so and the US government declines to pursue deportation.

Would the state be overstepping the federal government's authority? Can the federal government legally override this law?


1 Answer 1


No, this law would not be upheld. We know because this actually happened: Arizona passed a state law making it a state crime to be in violation of federal alien registration laws (which automatically includes illegal immigrants) and giving state and local law enforcement the power to arrest people if they had probable cause to believe the person had committed some crime making them removable from the US. The United States filed suit against Arizona, and the Supreme Court struck down those provisions (as well as one making it a crime for an illegal immigrant to seek employment in the state, which had no federal counterpart) in United States v. Arizona as being preempted by federal authority.

Federal preemption doesn't just apply if a federal law explicitly preempts state law, nor even just if there's a direct conflict between the two. There are two more cases where it applies:

  • Indirect conflict: The state law stands as an obstacle to achieving the full purpose of the federal law. For instance, in Crosby v. National Foreign Trade Council, Massachusetts passed a law banning state agencies from contracting with companies that did business with Myanmar. Then, Congress passed a law with its own sanctions, and giving the President the authority to add further sanctions. Even though the laws didn't directly conflict, the state law was found to undermine federal objectives on the matter because it banned stuff Congress hadn't and wasn't controlled by the President.
  • "Occupying the field:" This means the federal government has passed regulation which is so comprehensive that it leaves no role for the states. In this case, even a state law that is entirely in line with federal law, and doesn't seem to interfere with its objectives one bit, is still preempted because Congress has implicitly made it clear that the federal law is the only law on the matter; any state law automatically undermines that.

The Supreme Court held that Congress had occupied the field on immigration: Congressional regulation was sufficiently comprehensive that there was no room for states to pass any laws controlling immigrants. So, states cannot criminalize illegal immigration because the federal laws on the matter don't leave any role for them. Furthermore, states can't give their police the authority to arrest immigrants without warrant for being removable, because that's giving them more power than federal immigration officers (who normally need a warrant), and undermines the fact that Congress normally requires a warrant before making those arrests (increasing federal discretion).

  • +1, but illegal immigrants are only in violation of the federal registration statutes if they remain in the US for longer than 30 days. The Arizona statute mentioned 8 USC 1304(e), which applies only to those who have registered (and have been issued a receipt) (therefore, not to most illegal immigrants), and 8 USC 1306(a), which applies to those who fail to register as required. Under 8 USC 1302(a), the requirement to register arises after 30 days of presence in the US.
    – phoog
    Jan 28, 2019 at 20:04

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