Villanova Law Review


Laura E. Ploeg

First Page

Tolle Lege 26


The Supreme Court, in Chamber of Commerce v. Whiting, should have found that federal law pre-empts the Arizona law, and that the Court’s holding will have serious consequences. Whiting departs from the Court’s traditional application of implied pre-emption and general pre-emption principles, which are well established and have been repeatedly applied over many years. The Court used implied pre-emption principles only a few years ago to strike down a state law with a similar relationship to federal law as the laws in Whiting. The Whiting Court should have found the Arizona law pre-empted by federal law because it undermines several federal objectives. Moreover, Whiting could create serious practical problems and has already begun to do so, as more state immigration laws are proposed and passed. It is time to return an exclusively federal power to the federal government and tear down the façade of state laws purporting to regulate employment, housing, and the like, while essentially regulating immigration. Dissatisfaction with federal law must be addressed at the federal level.