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Kris Kobach, arguably the nation’s premiere legal advisor for state and local government immigration reduction efforts, has published a definitive article in the Georgetown Immigration Law Journal that lays out areas in which state and local governments can constitutionally act in the immigration areas without being preempted by Federal law. He notes that, as a general rule, “(p)rovided that a state statute is not expressly barred by federal law, the state statute does not attempt to create state-level standards regarding which aliens may enter the United States, the state statute does not pose an obstacle to the accomplishment of the manifest objectives of Congress, and it is possible to simultaneously comply with state and federal law, preemption does not occur.”

Kobach defines eight types of actions states or local governments can take:

  • Denying public benefits to illegal aliens;
  • Denying resident tuition rates to illegal aliens;
  • Prohibiting the employment of unauthorized aliens;
  • Enacting state-level crimes that mirror federal immigration crimes;
  • Enacting state-level crimes against identity theft;
  • Providing state and local law enforcement assistance to ICE;
  • Presuming illegal aliens to be flight risks for bail purposes; and
  • Denying driver licenses to illegal aliens.
However, in order to conform with Federal law and avoid preemption, Kobach says the following restrictions must be built into any state law or local ordinance: “(1) the statute must not attempt to create any new categories of aliens not recognized by federal law; (2) the statute must use terms consistent with federal law; and (3) the statute must not attempt to authorize state or local officials to independently determine an alien’s immigration status, without verification by the federal government.” Kobach admonishes those who claim that state and local governments have no role in addressing the illegal immigration crisis, noting that there is a substantial body of legal authority that contradicts such misguided views. He also reminds those who complain about a patchwork of different laws that the state and local governments are “only permitted to act in ways that are in harmony with federal law and consistent with congressional objectives. Far from creating a patchwork quilt, the states are providing the fibers that strengthen the rule of law throughout the country and fill in the gaps created by inconsistent federal enforcement.”
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