Sorry, UC — Federal Law Says You Can’t Hire ‘Undocumented’ Students

By George Fishman on November 8, 2023

Reproduced with permission. Published by Bloomberg Law on November 8, 2023. Copyright 2023 Bloomberg Industry Group 800-372-1033. For further use please visit

The 29 law professors who assured the University of California that no federal law prohibits it from hiring “undocumented” students neglected to disclose the risks of doing so for its human resources staff and to the UC regents themselves.

Their contention that the Immigration Reform and Control Act of 1986’s ban on knowingly hiring or employing immigrants unauthorized to work in the US doesn’t apply to state government entities skims over the fact that violations of the law carry civil as well as potential criminal liability, and have resulted in imprisonment.

The professors contend US Supreme Court precedent requires Congress to clarify that it wants to intrude on states’ historic police power to regulate employment — and that IRCA failed to say that “employer sanctions” specifically apply to states.

But to argue that “regulations concerning the hiring of undocumented immigrants” fall within states’ traditional powers, the professors rely on the Supreme Court’s 1976 decision in De Canas v. Bica. This takes chutzpah, since De Canas rejected a pre-IRCA challenge to California’s prohibition of knowingly employing unlawfully present immigrants.

The justices found that California was protecting the “lawfully resident labor force from the deleterious effects” that resulted from employing unlawfully present immigrants, concluding that states “possess broad authority under their police powers to regulate the employment relationship to protect workers” in the state, and California’s prohibition was “within the mainstream” of such regulation.

The justices also concluded that there didn’t appear to be a federal interest requiring state law preemption “with respect to individuals whom the Federal Government has already declared cannot work.” The court refused to presume that Congress “intended to oust state authority” used “in a manner consistent with pertinent federal laws.”

In 1982’s Plyler v. Doe decision, the high court explained that, as it recognized in De Canas, states “do have some authority to act” with respect to unlawfully present immigrants, “at least where such action mirrors federal objectives” and works “harmoniously within the federal program.” It’s unlikely that the justices, in applying this doctrine, would find California’s approval of hiring or employing immigrants unauthorized to work to be a use of a historic police power.

Even if IRCA did intrude on a historic state police power, Congress was clear that employer sanctions apply to states. The House Judiciary Committee stated that IRCA’s “penalties are universally applied to all employers” and that all employers must comply with its verification procedures. The Senate Judiciary Committee stated that all employers are covered, both private and public.

The Supreme Court in 1947 had made clear in Rice v. Santa Fe Elevator Corp. that Congress’ “clear and manifest purpose” to supersede states’ historic police powers can be evidenced if “the state policy may produce a result inconsistent with the objective of the federal statute.” Hiring immigrants unauthorized to work is clearly inconsistent with IRCA’s objective — state governments employ more than 5 million people.

The 29 professors propose that UC has a constitutional right to employ “undocumented” workers as professors, even if doing so contravenes IRCA. They cite the Supreme Court’s decisions in Sugarman v. Dougall, Foley v. Connelie, and Ambach v. Norwick, which cumulatively conclude that states can impose citizenship tests for police officers and school teachers — professions that “go to the heart of representative government.” Ambach says the “special significance of citizenship” gives governmental entities “wider latitude in limiting the participation of noncitizens” when exercising the functions of government.

In its 1979 decision in Toll v. Moreno, the court reiterated that a state may “limit the participation of noncitizens in its political and governmental functions,” when defining its political community. It indeed takes chutzpah to argue that these decisions convey to states a right to hire non-citizens.

It’s unlikely that the high court would find professors to reside in the heart of representative government, as federal courts have assigned only to schoolteachers the unique role of providing youth with the basic education and shared American values necessary to make good citizens.

Should UC choose to risk civil and criminal liability by hiring immigrants unauthorized to work, it would be wise to ask California to enact such a law. For unless the state itself asserts its supposed police power, and supposed constitutional right, to hire immigrants unauthorized to work, UC will find even these dubious defenses unavailable.

Topics: California