Formalizing local citizenship.

• Author: Spiro, Peter J.

INTRODUCTION

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. It is one thing to deport a mere resident of New York City, another to deport someone who has been formally designated as a member of the local community--one of its own.

Local citizenship would necessarily be exclusionary, as are all citizenship regimes, and the modalities of local membership would pose similar challenges to those involved with national membership. In the context of aliens, (4) however, local citizenship would act as a ratchet by expanding the boundaries of community to include those who have been excluded from (or who have opted not to join) the national community. Local citizenship might not include all non-national citizens territorially present within a subfederal jurisdiction, but it would include some. As an instrumental matter, then, the innovation would tend in the aggregate to be rights-protective to the extent that it were effective in overcoming the caste-enforcing tendencies of national immigration and citizenship policies.

This short essay first highlights recent state and local policies relating to immigrants and the respects in which they reflect the community membership of those who do not hold national citizenship. It then makes the case for bundling measures premised on alien membership through the institutional channel of citizenship. The essay explores the modalities of a formalized local citizenship, both independent of and within a national frame. Although the exercise is provisional and offered in the way of a thought experiment, in light of recent experience the concept is politically and institutionally plausible.

1. THE NEW GEOGRAPHY OF SUB-FEDERAL MEMBERSHIP

   State and local activity relating to non-citizens has been on the rise in recent years, (5)1 following a period of at least half a century during which such activity was suppressed, largely for functional reasons. (6) Because policies relating to immigrants inherently implicated sensitive matters of foreign relations and posed enormous downside risks, sub-federal authorities could be afforded only minimal discretion in the area. (7) This was true even when their orientation largely coincided with national policy. (8) The hair-trigger world of nineteenth and twentieth century international affairs demanded precise calibration at the same time that the externalities of state and local action created systemically higher risks of error. The concern focused on sub-federal activity that might disadvantage aliens to a greater extent than intended by the national government, with the corresponding danger of offending foreign sovereigns. (9)

   There is less historically visible evidence that sub-federal actors departed upwards from a federal baseline; that is, sub-federal policy does not appear to have favored non-citizens in ways not mirroring federal policy. Through the nineteenth century, this was largely attributable to the national open-door policy. The federal government did not introduce robust immigration controls until the late nineteenth century; the federal baseline thus left little room for more favorable treatment, in relative terms. The historical experience with non-citizen voting, the one context in which the states appeared to outdo the federal government's welcoming posture, is consistent with the proposition. Non-citizen eligibility under state law was typically contingent on declarant status: non-citizens were allowed to vote only once they had declared their intention to naturalize as U.S. citizens. (10) Non-citizen voting thus tracked national policy; indeed, declarant non-citizens were enfranchised by the federal government during the nineteenth century in the territories. (11) Many states established commissions to encourage immigration and assist with immigrant settlement. (12) These measures evidenced a constructive posture to non-citizens, but they did not enhance immigrant legal status in the face of the federal welcome.

   Concerns today also focus on ways in which state and local policy disadvantages non-citizens. The functional case against such state and local policies has been undermined by changes in the global context and the nature of foreign relations, even where such policies have not been expressly authorized by the federal government (in which contexts the argument is eliminated altogether). (13) The rise (and non-suppression) of state and local activity can be explained in these terms: local policies largely track federal policy, at least with respect to the treatment of undocumented aliens. As the...