Academic journal article
By Spiro, Peter J.
Fordham Urban Law Journal , Vol. 37, No. 2
States and localities have had an uneasy relationship with non-citizens, or at least that is how we mostly imagine it. Before the advent of federal immigration controls in the late nineteenth century, the states were left to their own devices in restricting freedom of movement. As the federal government sought to impose control over the admission, removal, and treatment of non-citizens, state and local measures discriminating against non-citizens were brought into relief through diplomatic controversy and judicial challenge. Pathologies typically occupy a higher profile in our histories, and there were clearly many contexts in which states and localities enjoyed a benign, even close relationship with non-citizen immigrants and immigrant communities. With the zenith of federal exclusivity over immigration regulation through the mid and late twentieth century, however, state and local governments were presumed to have antagonistic tendencies towards non-citizens. The reflex, constitutional and otherwise, was to eliminate sub-federal discretion in the area.
A revision appears well under way. Although concerns persist with respect to state and local enforcement of federal immigration laws, state and local governments have demonstrated a capacity in recent years to engage constructively with those lacking national citizenship, a capacity that is now recognized in the scholarly mainstream. (1) The constructive capacities of states have been (re)enabled by recent immigration and the presence of significant numbers of persistent non-citizens within particular sub-federal communities. Large-scale immigration is not a new phenomenon. State and local reception of immigrants may echo historical experiences, sometimes for the worse, but also for the better.
This essay will make the case for devising forms of state and/or local citizenship for aliens. (2) Sub-federal citizenship is already implicit in various practices that recognize aliens as members of sub-federal communities. Some of these practices relate to legally-present non-citizens only, as with non-citizen voting and permissive practices relating to non-citizen employment in the public sector. Some relate to non-citizens regardless of immigration status, including the issuance of local identity cards and eligibility for in-state tuition in public post-secondary education. These measures are not simply pro-immigrant. Rather, they reflect social solidarities and community membership among those who do not have full membership in the national community. They add up to a form of local citizenship for aliens. (3)
The solidarities evidenced by these practices could profitably be bundled into a more formal status under the citizenship label. Local citizenship decoupled from federal citizenship and immigration status would have expressive value beyond the sum of its parts. It could also have instrumental value in resolving the peculiar challenge of citizenship in this context, flowing from conflicting local and national postures towards undocumented non-citizens. Local citizenship would appear trumped by federal immigration law in the same way that sanctuary measures have been trumped by federal law. This is partially correct; the undocumented alien/local citizen would not be legally insulated from removal from the community by the national government. Formal local citizenship, however, would differ from sanctuary measures. Sanctuary is by its terms conflictual with federal regulation; as sanctuary from federal enforcement of the immigration laws, it is only actuated relative to the federal scheme. It is also expressive of universal human solidarity rather than of local solidarity. All undocumented non-citizens are beneficiaries of sanctuary measures. Local citizenship, by contrast, would be particularized and by its terms detached from federal regulation. This could make it a powerful discursive tool in defeating federal interference with local community structures. …