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The Immigration Proposal HB 1221 Is Unconstitutional

7 February 2013 No Comment

HB 1221 Committee Substitute, now pending, is unconstitutional on its face, as is the underlying 2008 statute, 
MS Code 71-11-3, because they are pre-empted by the US Constitution express delegation of power to 
Congress to regulate naturalization and immigration. According to the US Constitution the federal law is the 
”supreme law of the land” and therefore state statutes are subordinate to the power of the federal 
government. [For the deniers: we fought a Civil War over this issue!]

The US Supreme Court decision in the Arizona immigration case, decided in June 2012, makes it clear that the 
State of Mississippi cannot pass an anti-immigrant law that creates crimes, penalties, fines or other regulations 
for employers or employees, with a very small exception (see below in #4), because:

The US Constitution delegates to the Federal Government responsibility for the regulation of 
naturalization and immigration regulation. Therefore, the state governments are pre-empted from 
creating any regulatory scheme for immigration unless it is permitted by the US Congress.

  1. There are three ways that the Congress can pre-empt the states regarding immigration law.
  2. The Congress passes legislation that states that it is the purpose of Congress to pre-empt the states 
from creating regulations in this field.
    1. The Congress passes legislation that is so comprehensive that it completely occupies the field and 
leaves no room for the states to pass any regulatory scheme to add to or complement the federal 
legislation, which has the effect of pre-empting the states.
    2. The Congress, after due consideration and deliberation, makes an affirmative, conscious decision NOT to pass certain legislation in the field. This effectively constitutes a determination by Congress 
that in its judgment no regulations of a certain kind should be made. This process, by its nature, 
also constitutes a form of occupying the field and pre-empting the states from passing regulations 
in this area that Congress had determined should not be regulated.
    1. What is the underlying basis for the US Supreme Court determination that the states are pre-empted 
from regulating immigration?
      1. The Court noted in its decision that the US Constitution gave Congress the power to regulate 
immigration which involves both domestic policy and foreign policy.
      2. Therefore, the Court said, Congress gets to decide how best to create the delicate balance among 
all the complex decisions about how to structure domestic immigration policy consistent the 
exigencies of foreign policy. In short, the Court said it would be dangerous if each of the states 
could generate its own immigration policies without regard for the need to have a singular, 
coherent foreign policy for the nation. Only the federal government can provide that outcome, not 
the 50 individual states.
      3. Therefore, the states are pre-empted from regulating immigration.
      4. Therefore, the states cannot create crimes, fines and penalties, etc. that add to, subtract from, or 
otherwise impact the delicate balance determined by the Congress.
  3. The one exception for Mississippi appears to be that the state can regulate state licenses for 
employers and revoke them for non-compliance with E-Verify requirements.

This was pointed out by Atty. Crutcher, who made a lengthy presentation to House Judiciary 
Committee B at the request of Jud B Chair Andy Gipson in August 2012. Atty. Crutcher said that the 
only provision from the 2008 law, MS Code 71-11-3,  that can survive the US Supreme Court decision in 
the Arizona case is the state license revocation provision.

For further information contact:

Bill Chandler, MIRA at 601-968-5182, office; 601-592-3564, cell.

 

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