Discovering "Immployment" Law: The Constitutionality of Subfederal Immigration Regulation at Work

As the immigration debate rages in the United States, a growing number of state and local governments have enacted laws sanctioning employers who employ undocumented immigrant workers and requiring employers to use an electronic employee-verification system (referred to collectively as "subfederal employer-sanctions laws"). Over the past few years, there has been a tug-of-war about whether state and local governments may enact employer-sanctions laws without running afoul of the Constitution's Supremacy Clause. One federal district court and three federal courts of appeals have considered the issue and have come to contrary conclusions. The U.S. Supreme Court is considering the constitutionality of Arizona's employer- sanctions law during its 2010-2011 Term.

This Article addresses the unresolved Supremacy Clause question about the constitutionality of subfederal employer- sanctions laws from an entirely new vantage point.