Skip to main content
Unpublished Paper
Immigrant Laws, Obstacle Preemption and the Lost Legacy of McCulloch
ExpressO (2011)
  • Lauren Gilbert, St. Thomas University

Using Congress’ perceived failure to enforce the immigration laws as a backdrop, this paper will explore how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Chamber of Commerce v. Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second related trend is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. The third is a tendency to no longer explicitly apply the presumption against preemption, and in some cases, to do exactly the opposite: presume preemption. The Court’s decision in Whiting is a harbinger of things to come, as challenges to state and local laws regulating immigrants make their way to the Court and a growing number of states adopt their own versions of S.B. 1070 and the Legal Arizona Workers Act. I first offer a brief overview of preemption jurisprudence, focusing on the nearly-forgotten legacy of McCulloch v. Maryland in planting the roots of obstacle preemption. I also examine recent case law showing a predisposition on the Court’s part to substitute impossibility and obstacle preemption with the “logical contradiction” test. I examine how the Supreme Court in Whiting overlooked the case law interpreting the preemptive effect of the 1986 Immigration Reform and Control Act (“IRCA”) and on how it ignored the Third Circuit’s careful analysis of obstacle preemption in Hazleton v. Lozano. I then address the implications for S.B. 1070 and state and local copycat laws of the Court’s apparent willingness to uphold state laws modeled after federal law when enacted to redress a gap in federal enforcement. I conclude that, while unwise and contrary to precedent, adoption of the logical contradiction test would be a dramatic paradigmatic shift that would give the Court the means to uphold state and local laws regulating immigrants and immigration to the extent that these laws track federal enforcement measures.

  • preemption,
  • copycat laws,
  • federalism,
  • dominant federal interest
Publication Date
October 24, 2011
Citation Information
Lauren Gilbert. "Immigrant Laws, Obstacle Preemption and the Lost Legacy of McCulloch" ExpressO (2011)
Available at: