Academic journal article William and Mary Law Review

The States of Immigration

Academic journal article William and Mary Law Review

The States of Immigration

Article excerpt

TABLE OF CONTENTS  INTRODUCTION  I. VENUE-SHIFTING AND THE ROLE OF STATES     A. The Structure of the Federal System     B. The Incentives of Political Actors     C. The Descriptive Limits of Federalism  II. STATES IN IMMIGRATION POLICY MAKING     A. Immigration Policy Making in a Federal System     B. State Employer Sanction Laws and the    Road to IRCA in 1986        1. The State Response        2. The State Impact     C. Proposition 187, Reimbursement Lawsuits, and the    Road to IIRIRA in 1996        1. The State Response        2. The State Impact  III. MODERN DEVELOPMENTS     A. Arizona's S.B. 1070 and State Enforcement    Mandates        1. The Roots of S.B. 1070 and the Rise of State       Enforcement Mandates        2. The Preliminary Impact of State       Enforcement Mandates     B. Sanctuary, In-State Tuition, and the Federal    DREAM Act        1. State and Local Resistance to Federal       Immigration Enforcement        2. Higher Education and Legalization for       Undocumented Students  IV. IMPLICATIONS OF VENUE-SHIFTING     A. Implications for Federalism     B. Implications for Immigration Federalism     C. Implications for Substantive Policy Making  CONCLUSION 

INTRODUCTION

Is federalism in crisis? Looking at the recent controversies over immigration, one might presume that it is. Federalism is ordinarily imagined to require a clear delineation between matters delegated to the federal government and those left to the states. (1) And for more than a century, immigration has been widely recognized as both a national issue and a federal responsibility. (2) Yet in recent years there has been an avalanche of state activity on this issue. Since 2005, states have enacted more than one thousand laws concerning immigration. (3) States like Arizona and Alabama have drawn national attention and controversy by enacting elaborate enforcement schemes that are both comprehensive in scope and at odds with existing federal policies. (4) Through legal challenges, the federal government has sought to defend its policy-making authority and prevent the emergence of a patchwork of state standards. (5) Emboldened by the congressional paralysis over federal immigration reform, however, states are not only more active but they are also more influential. (6) As such, the "free-for-all" in immigration policy making continues. (7)

Alas, the prospect of untangling this jurisdictional knot is remote--not because the legal questions are difficult, but because this kind of jurisdictional jostling is simply how policies in a federal system are made. Seeking specific outcomes, political actors have a strong incentive to draw states into contentious policy disputes, even when there may not appear to be a matter of state concern. This is because state policy making can shift the locus of a policy dispute, reframe the underlying issue, and build support for a particular position. (8) Moreover, it can have this effect even if the resulting laws are never legally implemented or even effectively enforced. It is no wonder that political actors of all kinds--from federal policymakers and national political organizations, to local officials and individual advocates--frequently turn to states to overcome political obstacles that they face. In short, as a matter of political strategy, states are often called upon to shape policy outcomes in ways that may require them to step outside their legal authority as lawmakers or even their institutional competence as regulators. (9)

I call this strategic use of states "venue-shifting," and I argue that it sheds light on the role and influence of states in immigration policy making. Contrary to common perception, state involvement in immigration regulation is hardly unprecedented. States were actively involved in the years before the federal government enacted comprehensive immigration reforms in 1996. The enactment of state laws also surged in the run-up to the reforms of 1986. …

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