AGO Opinion 97046
Imposition of State Sanctions Against Employers Who Hire Illegal Aliens
DATE: September 11, 1997
SUBJECT: Imposition of State Sanctions Against Employers Who Hire Illegal Aliens
REQUESTED BY: Senator Donald G. Preister
WRITTEN BY:Don Stenberg, Attorney General
L. Steven Grasz, Deputy Attorney General
You have requested an Attorney General's Opinion as to whether the State
of Nebraska could enact a law imposing fines on businesses or employers who hire
illegal aliens/undocumented workers. You note in your request that the federal
government regulates immigration, and you ask whether a state statute imposing
such fines on employers would be constitutional.
The U.S. Supreme Court has "long recognized the preeminent role of the
Federal Government with respect to the regulation of aliens within our borders."
Toll v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 2982 (1982). However, federal
preemption of state laws regarding illegal aliens is not automatic. In DeCanas
v. Bica, 424 U.S. 351, 96 S.Ct. 933 (1976), the Supreme Court addressed the issue
of whether a California statute prohibiting employers from knowingly employing
illegal aliens was unconstitutional under the Supremacy Clause of the U.S.
Constitution. Id. at 935. The California statute imposed fines on employers of
$200-$500 for each offense. Id. at 935 n.1.
The Supreme Court held that federal law, including the Immigration and
Nationality Act, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et. seq., did not
preempt the California statute. Id. at
937. The Court stated that "States possess broad authority under their police
powers to regulate the employment relationship to protect workers within the
State." Id. at 937. However, federal law, as it then existed, did not contain
penalties for hiring illegal aliens. The Court noted that "H.R. 8713, now
pending in Congress, would amend 8 U.S.C. § 1324 to provide a penalty for
knowingly employing an alien not lawfully admitted to the United States." Id.
at 936 n.4.
Today, 8 U.S.C. § 1324a makes it unlawful to hire an unauthorized alien,
and provides for civil penalties for each violation. Most importantly, for
purposes of the question presented, § 1324a(h)(2) now expressly provides that
"The provisions of this section preempt any State or local law imposing civil or
criminal sanctions (other than through licensing and similar laws) upon those who
employ, or recruit or refer for a fee for employment, unauthorized aliens."
Consequently, the answer to your question is that any state statute
imposing fines on employers for hiring illegal aliens would violate 8 U.S.C. §
1324a(h)(2) and the Supremacy Clause of the United States Constitution.
Deputy Attorney General