This week, the United States Supreme Court opened its October session. Among the cases it will hear is a challenge to a state law that sanctions employers for hiring unauthorized workers. This is the first case challenging the recent influx of state and local laws attempting to regulate immigrants and immigration and an opportunity for the Supreme Court to assert the federal government’s constitutional right to set immigration law. In the second immigration case, the Supreme Court must decide whether former citizenship law provisions—which imposed a five-year residency requirement for U.S. citizen fathers, but not mothers—violate equal protection.
In Chamber of Commerce v. Whiting, the petitioners, various businesses and civil rights organizations, argue that a 2007 Arizona statute is unlawful because it is preempted by federal immigration law, specifically, provisions of the Immigration Reform and Control Act of 1986 (IRCA). As the petitioners explain in their brief to the Court,
[i]n IRCA, Congress created a comprehensive scheme for regulating the employment of aliens, including the methods by which to verify a job applicant’s eligibility for employment. It balanced multiple, sometimes competing, objectives: deterring illegal immigration, protecting applicants from discrimination, accommodating privacy concerns, and minimizing burdens on employers.
Yet, the Arizona statute disrupts this uniform scheme and unconstitutionally interferes with the federal government’s authority to devise a comprehensive system governing immigration-related employment. The Obama Administration agrees and has filed a brief supporting the challengers in this case. The American Immigration Council, along with the American Immigration Lawyers Association and the National Immigrant Justice Center, also filed a brief in support of the challengers detailing the complexity of the federal system and the burdens employers, workers, and practitioners will face if the states are allowed to adopt competing schemes.
Numerous states and localities have enacted laws attempting to regulate immigration law. These laws include another, more expansive Arizona statute (SB 1070), and the Hazleton, Pennsylvania ordinance, both of which lower courts have struck down. Numerous other states and localities are considering such laws. Thus, Chamber of Commerce v. Whiting comes at a critical juncture. The Supreme Court must send a clear message that the states are not allowed to usurp the federal government’s power and upset carefully developed schemes. While our federal immigration system may be in need of reform, creating a patchwork of state laws attempting to regulate immigration is not the solution.
The Supreme Court also will hear a second case with implications for immigrants. In Flores-Villar v. United States, the Court will look at former provisions of the citizenship laws and whether they violate equal protection. These provisions imposed a five-year residence requirement, after the age of fourteen, on U.S. citizen fathers—but not on U.S. citizen mothers—before they may transmit citizenship to a child born out of wedlock abroad.
The petitioner in Flores-Villar was born in Mexico to a U.S. citizen father and a noncitizen mother. He grew up in the United States and his father subsequently filed an acknowledgment of paternity in Mexico. The petitioner was later deported from the United States and thereafter criminally charged with illegal reentry when he returned. As a defense to the criminal charge, he contends that he is a United States citizen. He argues that because the citizenship laws required five years of residency for U.S. citizen fathers, but a less demanding residency requirement for U.S. citizen mothers, the law makes an unlawful classification on the basis of gender. This case has implications not only on immigration cases, but potentially on gender discrimination claims in other contexts as well, and thus provides the Court an opportunity to clarify that unsustainable gender-based classifications cannot stand, regardless of the context in which they arise.
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