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Tarango v. State Industrial Insurance Co.6/13/2001
l purposes and objectives of Congress.'" Failure on any one of these three tests results in federal preemption.
There is no real dispute in this case that the NIIA rehabilitation scheme satisfies the first two tests. Nevada clearly has the authority to protect its workers (lawfully and unlawfully employed) under a no-fault workers' compensation system. This notwithstanding, all three tests are discussed below.
Under the first De Canas test, we must determine whether the state enactment that in some way impacts aliens is a regulation of immigration. Because the power to regulate immigration is exclusively a federal power, state statutes that regulate immigration are constitutionally proscribed. In this instance, the NIIA provides benefits for all employees, undocumented or otherwise. However, the De Canas Court emphasized that a state enactment does not automatically equate to a regulation of immigration, and ipso facto preemption of state law, because it deals in some manner with aliens. The Supreme Court noted that state statutes should not be branded as regulatory merely because the legislation has "some purely speculative and indirect impact on immigration." The NIIA rehabilitation scheme is intended to provide certain benefits to all Nevada workers; it does not, in any respect, purport to regulate immigration.
Likewise, under the second De Canas test, it cannot be said that there is any manifestation of Congress's intent to oust state authority to rehabilitate undocumented injured workers. Prior to IRCA's enactment, it was long established that undocumented alien workers were able to collect workers' compensation benefits. Had Congress intended to preclude states from continuing to provide these benefits, it could have explicitly done so under IRCA.
In my view, only the third De Canas test, i.e., whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, provides an arguable basis for federal preemption. However, I do not believe that the rehabilitation of undocumented workers under the NIIA interferes with federal legislative objectives.
Congress enacted IRCA in an effort to reduce the illegal immigration of alien workers to the United States. Recognizing that the most effective method of discouraging illegal immigration is to make undocumented workers less attractive employees, Congress criminalized the employer's side of the employment relationship. This policy is underscored by the legislative history of the federal act:
"Employment is the magnet that attracts aliens here illegally or, in the case of non-immigrants, leads them to accept employment in violation of their status. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens and this, in turn, will deter aliens from entering illegally or violating their status in search of employment.*fn67"
Thus, IRCA makes it unlawful "to [knowingly] hire, or to recruit or refer for a fee," any unauthorized alien for employment in the United States. IRCA does not, however, "reduce the legal protections and remedies for undocumented workers under other laws." Indeed, to do so would "exacerbate the appeal of illegal workers to unscrupulous employers," and directly contravene Congress's intent in enacting IRCA. I wish to note in this connection that there is no evidence of any untoward behavior by this employer. This, however, does not change the policy behind preserving certain protections afforded to undocumented workers.
In contrast, beyond the placement of a worker in new or substitute employment, the NIIA contains no requirement affecting alien workers t
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