California Dreamin': Can State Universities Legally Hire Non-Work Authorized Aliens

By George Fishman on June 21, 2023

[Below is the abstract of an article appearing in Vol. 48, No. 1, of the Journal of College and University Law. It is based on a November 2022 CIS report.]

A notable group of immigration law professors has assured California that it can allow its State universities to hire aliens not authorized to work under federal law, concluding that the Immigration Reform and Control Act of 1986’s “prohibition on hiring undocumented persons [known as employer sanctions] does not bind state government entities”. They contend that Congress cannot intrude on the States’ historic police power to regulate employment without being explicit about doing so, and IRCA does not explicitly spell out that employer sanctions apply to States as employers. The professors also contend that the States’ constitutional right to select their elected and non-elected leaders allows them to hire unauthorized aliens as professors, regardless of any congressional command to the contrary.

I conclude that the professors’ first argument is incorrect because 1) Congress clearly intended employer sanctions to apply to all employers, 2) Congress had good reason for not spelling out application to the States, 3) Congress can evidence its clear and manifest purpose without the need for such a spelling out, and 4) in any case, employer sanctions are unlikely to be the sort of mandate that require any spelling out in the first place.

I further conclude that the professors’ second argument may possibly be correct—to the extent employer sanctions were applied to State policy-making officials. However, the right of State universities to hire unauthorized aliens as professors would have to be extrapolated from Supreme Court rulings that States have the right to impose citizenship tests for positions such as public school teachers. This is a bridge too far. It is not clear that courts would agree to the obverse of the principle—that States have a right to expand eligibility to non-citizens, even to aliens unauthorized to work in the United States. And even if courts were to agree in the context of public school teachers, it is unlikely that they would equate professors with school teachers as performing a role that goes to the heart of representative government.

[Read the whole article at the Journal of College and University Law.]