Volume 38
Issue
3
Date
2024

State Employment Authorization

by Ahilan T. Arulanantham and Astghik Hairapetian

Can state governments hire undocumented workers? That question has risen to prominence in the last few years, as the prospects of federal legislation to grant lawful status to the approximately 11 million undocumented people living in the United States have dimmed. The issue has gained particular 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 authorization 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 people to work. Most policymakers have assumed that any state policy permitting 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 undocumented 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 prohibition 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.

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