The Unconstitutionality of State Regulation of Immigration through Criminal Law

By Chin, Gabriel J.; Miller, Marc L. | Duke Law Journal, November 2011 | Go to article overview
Save to active project

The Unconstitutionality of State Regulation of Immigration through Criminal Law


Chin, Gabriel J., Miller, Marc L., Duke Law Journal


ABSTRACT

The mirror-image theory of cooperative state enforcement of federal immigration law is a phenomenon--one of the most wildly successful legal ideas in decades. The mirror-image theory proposes that states can enact and enforce criminal immigration laws that are based on federal statutes. The theory that it is unobjectionable for a state to carry out federal policy is the basis of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act--better known as SB 1070--and similar laws enacted in Alabama, Georgia, Indiana, and Utah. The same theory has provoked the introduction of bills in numerous other states and earlier but more narrowly focused immigration laws already in force in seven states. The mirror-image theory has succeeded not only in legislatures but also in the larger political culture: it has been embraced by dozens of U.S. senators and representatives, by policy groups, by private citizens, and by commentators including George Will, Sarah Palin, and the editors of the New York Post and the Washington Times.

The mirror-image theory is indeed appealing. But it is also fundamentally flawed. This Article, the first to subject the mirror-image theory to sustained scholarly scrutiny, demonstrates that the mirror-image theory fails to identify a legitimate source of state authority to legislate on immigration matters.

No one denies that Congress and the federal executive have exclusive authority over the substance and procedure of the admission, exclusion, and removal of noncitizens, documented and undocumented. This proposition was firmly established by a pair of Supreme Court decisions from 1876. The mirror-image theory does not challenge this deep-rooted idea head-on, but instead proposes that state legislative authority over immigration flows from federal cases and the provisions of the Immigration and Nationality Act that authorize states to assist in the enforcement of federal immigration law. Those sources, however, contemplate state assistance with enforcement only through arrests, and arrest authority does not imply the power to legislate or to prosecute. To the contrary, other provisions of the INA clarify that federal agencies have the exclusive power to make prosecutorial and administrative decisions after an arrest, as well as to create supplementary regulations.

The mirror-image theory rests on the erroneous premise that Congress has implicitly authorized state enforcement of federal immigration law. This Article argues that state enforcement would be unconstitutional even if it were explicitly authorized by Congress. First, the federal immigration power is exclusive and nondelegable. Second, criminal prosecution and immigration enforcement are executive powers that Congress cannot remove from the president and share with non-executive-branch officials. Finally, the Supreme Court has held that states cannot prosecute crimes that affect only the sovereign interests of the United States. Accordingly, state immigration prosecutions are irremediably unconstitutional.

TABLE OF CONTENTS
Introduction

I.   The Federal Power To Regulate Immigration
     A. Federal Supremacy over Immigration
     B. State Regulation of Immigrants, Not Immigration

II.  The Doctrinal Foundations of Cooperative Enforcement
     A. The Power To Arrest Versus the Power To Legislate
     B. Power and Discretion in the INA
        1. State Assistance to Federal Authorities in the INA
        2. Federal Authority in the INA
     C. The Special Problem of State Criminal Immigration
        Policy

III. Could Congress Authorize State Enforcement of Federal
     Criminal Law?
     A. State Legislative Power To Enact Criminal
        Immigration Laws
     B. Presidential Authority over Federal Criminal
        Prosecutions
        1. Executive Authority To Execute the Laws
        2. Executive Authority over Immigration
     C. Sovereign Interests of the United States

Conclusion

INTRODUCTION

The mirror-image theory of cooperative state enforcement of federal immigration law is one of the most consequential legal ideas in decades.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Unconstitutionality of State Regulation of Immigration through Criminal Law
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?