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Immigration Law

Students, Legal Scholars Push California Universities to Hire Undocumented Students

Miriam Jordan, New York Times, Oct. 19, 2022

"[A] coalition of undocumented student leaders and some of the nation’s top legal scholars is proposing that California, a state that has served as an incubator for progressive policies on immigration, begin employing undocumented students at the 10 University of California campuses. The proposal, which almost certainly would face significant political and legal challenges, calls for the state to defy current interpretations of a 1986 federal immigration law that prohibits U.S. employers from hiring undocumented immigrants. But a new legal analysis drafted at the University of California, Los Angeles, and reviewed in some of the nation’s top law schools argues that the law does not apply to states. Backed by Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law; Adam B. Cox of New York University Law School; and constitutional and immigration scholars at Cornell, Stanford and Yale, among other universities, the concept that those in the country unlawfully could be hired for state jobs could have implications for California, where the U.C. system is the third-largest employer, and for the broader population of 11 million undocumented people who live in the United States. ... Twenty-six experts ... conclud[e] in a legal analysis being released with the students’ letter on Wednesday that when Congress passed the Immigration Reform and Control Act in 1986, it did not curtail the states’ historic power to determine whom they could employ. The legal scholars also noted that the Supreme Court has repeatedly found that Congress has no power to regulate state governments in certain areas, such as employment, absent “clear language” to allow it. “This proposal has been hiding in plain sight,” Mr. Arulanantham said. “For nearly 40 years, state entities thought they were bound by the federal prohibition against hiring undocumented students when, in fact, they were not.” "