ARTICLE
STATE EMPLOYMENT AUTHORIZATION
AHILAN T. ARULANANTHAM AND ASTGHIK HAIRAPETIAN*
ABSTRACT
Can state governments hire undocumented workers? That question has
risen to prominence in the last few years, as the prospects of federal legisla-
tion to grant lawful status to the approximately 11 million undocumented
people living in the United States have dimmed. The issue has gained par-
ticular urgency in the context of higher education. More than one million
undocumented people came to the United States when they were children,
and many of them received temporary protection from deportation and au-
thorization to work through the Deferred Action for Childhood Arrivals
(DACA) program. But a combination of political and legal forces have
effectively closed DACA to new applicants for most of the last five years. As
a result, nearly all undocumented students graduating high school today
have no access to DACA, and therefore no ability to accept employment
opportunities on college campuses—even when it is necessary to complete
their studies.
In the absence of federal legislation or further administrative action in
this area, building immigrant-inclusive communities has increasingly
become the task of states rather than the federal government. California
has made great strides in that area over the past two decades by providing
health insurance, driver’s licenses, and various other opportunities to
state residents, regardless of immigration status. Until now, however,
California has stopped short of protecting the ability of undocumented
* The authors would like to thank Hiroshi Motomura, Adam Cox, Pratheepan Gulasekaram, Jennifer
Chacon, Jennifer Gordon, Omar Jadwat, Tom Jawetz, Michael Kagan, Peter Markowitz, Isabel Medina,
Victor Narro, Shoba Sivaprasad Wadhia, Michael Wishnie, and Stephen Yale-Loehr for their invaluable
contributions to the ideas described here. Special thanks to Valerie Marquez, Genesis Aguirre, Elizabeth
Bird, and Viviana Gonzalez for their research assistance. © 2024, Ahilan T. Arulanantham and Astghik
Hairapetian.
279
people to work. Most policymakers have assumed that any state policy per-
mitting undocumented people to work would violate federal law.
But that assumption is wrong. While Congress prohibited employers from
knowingly hiring undocumented workers in the Immigration Reform and
Control Act of 1986 (IRCA), the federal prohibition against employing undocu-
mented people does not specify that it applies to state government employers.
That omission is crucial, because Congress must speak clearly when it seeks to
intrude upon areas of traditional state authority—such as whom states may
hire as their own employees. As a result, federal law already permits states to
hire undocumented people.
In this article, we set forth in detail the argument for reading the federal pro-
hibition on hiring undocumented people not to apply to state government
employers. We first describe the textual evidence that states are not included in
the federal prohibition. We then explain why reading the prohibition to apply
to states would infringe upon the states’ historic powers, and therefore cannot
be accomplished without a clear statement. We go on to address questions
raised by our argument. We show that many state institutions—including
public universities like the University of California—already have authority to
hire undocumented people as employees. We also describe the need for more
research to determine the full implications of the argument we describe.
TABLE OF CONTENTS
INTRODUCTION ......................................... 281
I. DOES IRCA BIND THE STATES? TEXT, STRUCTURE, FEDERALISM . . . 286
A. Applying Textualist Principles of Statutory Construction,
IRCA Likely Does Not Bind Instruments of State
Government .................................. 286
1. IRCA’s Prohibition Does Not Mention States . . . . . . . . 286
2. References to States in Other Sections of IRCA Support
the Reading that IRCA Does Not Bind States . . . . . . . . . 288
3. Other Statutes That Do Bind States Suggest IRCA
Does Not Apply to States ........................ 293
B. Congress Would Have Had to Speak Clearly to Prohibit
States from Hiring Undocumented People ............ 297
1. IRCA Implicates the Clear Statement Rule for Federal
Legislation Intruding Into Areas of Traditional State
Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
2. IRCA Would Dictate the Qualifications of State
Officials ........................................ 299
280 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 38:279
3. IRCA Would Infringe Upon the States’ Distinct Power
to Regulate Employment. . . . . . . . . . . . . . . . . . . . . . . . . . 304
II. QUESTIONS RAISED .................................. 307
A. Questions Related to IRCA.......................
. . . .
....
307
1. The Regulation.............................. 307
2. Liability Provisions.......................... 309
3. Federal Supremacy..............................
. .
311
B. Questions Related to Other Statutes. . . . . . . . . . . . . . . 314
III. IMPLICATIONS: WHICH INSTITUTIONS ARE FREE TO HIRE
UNDOCUMENTED WORKERS?........................... 316
A. Sovereign Immunity Test: The University of California and
Beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
B. Local Governments: Arms of the State Under State Law . . . 322
C. Constitutional Carve-Outs: School Teachers, Police
Officers, and High-Level Officials . . . . . . . . . . . . . . . . . . 324
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
INTRODUCTION
Nearly forty years have passed since Congress enacted—and President
Ronald Reagan signed—the last large-scale legalization program for undocu-
mented immigrants.
1
Demographers estimate there are now approximately
11 million undocumented people living in the United States.
2
Profile of the Unauthorized Population: United States, MIGRATION POL’Y INST. (2019), https://
perma.cc/2EQN-9FVV.
As of 2017,
more than two thirds of them had lived here for more than a decade, and
more than one million of them came here when they were children.
3
See Key facts about the changing U.S. unauthorized immigrant population, PEW RSCH. CTR. (Apr.
13, 2021), https://perma.cc/C8PU-NS9D.
However, despite massive political mobilization at various times over the
last twenty years, political support for legalization in both houses of
Congress and the White House at the same time has never been sufficient to
enact a new legalization measure.
Some observers thought that would change after the 2020 election.
President Biden was elected after endorsing broad “immigration reform”—
code for legalization—on the campaign trail, and Democrats won control of
1. Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3359 (1986).
2.
3.
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