Immigration has been rising around the world. In 2005, almost 191 million people lived outside the country of their birth, and 20 percent of these international migrants were in the United States, more than in any other country.[1]

Immigrants are now 13 percent of the U.S. population. Most of these 38 million people are here legally, but an estimated 11 million-12 million are unauthorized residents who overstayed their visas or entered the country without legal documents.[2]

Illegal immigration is a stark symptom of an ailing federal immigration policy. The current rules about who can enter this country, dating from 1965, do not reflect the demands of current labor markets and considerations of equity toward people who wish to become legal residents. Yet despite widespread criticism of the rules, Congress has been unable to agree on a comprehensive reform of immigration policy. With the federal government in a stalemate, the states have taken action to an unprecedented degree. States enacted 206 laws related to immigration in 2008 and 240 laws in 2007, a sharp increase from 38 laws in 2005.[3]

But what is the authority of the states to set policies related to immigration? What types of initiatives have states taken that affect the wellbeing of immigrants? Their initiatives vary considerably from state to state and, because many create winners and losers, they have generated controversy and legal challenges. One policy area that should not be controversial is the enforcement of the states’ own labor laws. Yet for numerous reasons, states are not fully implementing the labor laws on their books.

Federal Authority for Setting and Enforcing Immigration Policy

From a federalism perspective, the states’ recent activism is noteworthy because legal scholars agree almost universally that the Constitution gives the federal government responsibility for setting immigration policy. The federal government has the sole authority to set the number and characteristics of immigrants admitted into the United States and the rules of their naturalization. It also has the responsibility to protect the country’s borders from unauthorized entrants. Moreover, the Constitution limits the states’ independent authority to set policies regarding immigrants. The legal concept underlying this strong federal authority is known as “federal preemption,” based on the Supremacy clause of the Constitution, Article VI, which invalidates or “preempts” state laws that conflict with or interfere with federal laws.

Until recently, Congress had given the states little authority to treat immigrants differently from other residents. It broke this precedent with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which was the first federal law to give states the authority to distinguish between citizens and immigrants in distributing public benefits. Another 1996 law, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), is the first federal law that recognizes the capacity of states to assist in enforcing federal immigration laws. It does not impose a mandate on states or provide them with funds, but it does allow the states to enter into a voluntary agreement with the federal government to assign their police to enforcing federal immigration laws.

With the REAL ID Act of 2005, however, Congress did create a mandate on the states. To increase their role in enforcing immigration laws, this law creates federal standards and verification procedures on state-issued driver’s licenses and ID cards with the objective of denying them to illegal immigrants. It imposes the mandate de facto by specifying that only driver’s licenses and ID cards that meet the federal standards and procedures can be used as identification to board federally regulated commercial aircraft, to access federal facilities, and for several other purposes. The Deficit Reduction Act of 2005 imposes another mandate on the states by requiring that applicants for the states’ Medicaid programs show proof of citizenship in order to be eligible for benefits.

State Initiatives Regarding Benefits and Services

Although these federal laws give states new powers and responsibilities aimed at immigrants, authority for making immigration policy rests firmly with the federal government. But a distinction must be made between immigration policy and immigrant policy. Immigration policy, or the rules about the number and characteristics of immigrants admitted into the country, is made by the federal government. But immigrant policy, or policy regarding the treatment of immigrants once they enter the country, is the result of court cases, laws, regulations, procedures and their implementation at all levels of government. Along with the federal government, states make policy decisions that affect the wellbeing of the authorized and unauthorized immigrants in their jurisdictions. Some of these policies are directed at immigrants while others are more general but affect immigrants disproportionately. So while the federal government sets the parameters of immigration policy at the border, the policies of state governments help determine the fate of immigrants once they are in the country.

States are reacting in different ways to provide, or deny, benefits and services to immigrants and their families. California gained attention in 1994, when its voters approved Proposition 187 which, if it had not been invalidated in federal court, would have denied education, social services and most medical care to undocumented immigrants. In responding to the PRWORA, some states (including California) elected to use their own funds to provide food stamps, Medicaid and Temporary Assistance for Needy Families (TANF) benefits to immigrants whose coverage was not federally funded, while others did not.

Education is another area where states have taken opposing positions in making benefits and services available to immigrants. A 1982 decision of the U.S. Supreme Court requires states to provide K-12 education to all immigrant children, both legal and illegal. But access to higher education is not guaranteed. Several states have taken initiatives to deny illegal immigrants financial aid, charge them out-of-state tuition, or bar them from higher education completely.[4] States also vary in their funding for English-as-a-second-language instruction, employment and training programs, and other services to integrate immigrants into the country. About half the states have declared English to be the official language, while more welcoming states go out of their way to translate applications for food stamps, Medicaid and TANF benefits into the languages of their most numerous immigrants.[5]

State Labor Laws

States are also reacting in different ways as they enact and enforce laws regarding employment. Like the granting of benefits, laws regarding the employment of immigrants, particularly low-skilled workers, raise contentious issues that pit one group against another. Opponents of liberal immigration argue that immigrants undercut the wages of native workers and displace them from jobs. Proponents argue that shortages of people willing to work in low-wage jobs in agriculture, food processing, nursing homes, construction, and other sectors make immigrants necessary to maintain our standard of living. Business, organized labor, and consumers have a huge stake in the rules governing the availability of immigrant workers.

The federal Immigration Reform and Control Act (IRCA) of 1986 prohibits employers from hiring unauthorized immigrants and requires employers to verify the immigration status of job applicants. Implementation of the law has been slow due to technological problems in verifying employment, lack of willingness among employers, legal challenges, and a mix of state reactions. Legislation in 1996 required the federal government to develop an electronic method for employers to verify the status of their employees and, after a decade of development, a system known as E-Verify is in operation, although its use is not mandated. E-Verify, operated by the Department of Homeland Security, matches the name and social security number presented by the employee with the database of the Social Security Administration. A “no match” indicates either that the worker is not authorized to work or, critics of the system claim, that an error has been made.

Federal law does not give the states any role in E-Verify, but several states have reacted to it. Illinois prohibits employers from using it, while 12 states require public and/or private employers to use it.[6] Business and immigrant groups have joined together to challenge states that mandate its use, arguing that state laws are preempted by federal law in the area of immigration. But recently a federal appeals court upheld an Arizona law that requires businesses to use E-Verify and penalizes those that knowingly hire illegal immigrants, thereby giving the states new authority.

Few policies of state governments determine the fate of immigrants as much as the states’ own labor laws. The laws of many states require the payment of minimum wages and prevailing wages, require overtime pay and limit mandatory overtime, require workmen’s compensation, impose health and safety regulations, and prohibit child labor and coercion against workers. If these laws were enforced, employers would be less interested in hiring unauthorized immigrants at low wages. Yet implementation of state labor laws is imperfect. Workers, especially immigrants, may be unaware of the laws and afraid to initiate complaints against violations. State labor department staff is inadequate to investigate and monitor employers, especially small and mobile firms in the service sector, manufacturing, and construction.[7]

Inadequate staff to implement the laws is not surprising because enforcement creates both winners and losers. Strict enforcement raises wages and improves working conditions, which helps native workers and the immigrants who are hired. Strict enforcement might also reduce the resentment of those who believe that immigrants take away their jobs. But employers may lose if their costs rise and consumers lose if prices rise, so strict enforcement does not benefit everyone. And finally, because higher wages decrease the demand for labor, some workers who would have been employed are not hired.

The importance of state labor laws and their enforcement for immigrant labor markets means that states will shape immigrant policy for a long time. To date, few states have given priority to enforcing their labor laws. Similarly, the federal government has not devoted enough staff to enforcing federal labor laws to keep pace with the growth of the economy.[8] Although accurate estimates of violations are unavailable, evidence suggests they are widespread.[9] Any resolution of the immigration issue will need to take up the challenge of enforcing these laws, and that effort will require both levels of government, probably together with organizations of immigrants themselves, to create additional capacity and strategies to ensure that all workers are effectively covered. How states can contribute to this effort warrants further attention.