Although there is a burgeoning literature on the criminalization of migration, (1) immigration issues are not usually included in academic conversations surrounding overcriminalization. (2) Criminal law scholars may not have been particularly attuned to developments in the world of immigration law because they have understood it to be primarily the domain of civil or administrative law. (3) For most of U.S. history, this has been the case. Or perhaps the failure to consider immigration law in overcriminalization discussions has occurred because widespread enforcement of criminal immigration laws is a relatively new phenomenon. (4) Whatever the reasons, in an era when about half of all federal criminal prosecutions are of immigration crimes, (5) and when many states and localities are enacting ordinances aimed at criminalizing offenses related to migration,6 now is a good time to start including immigration policy in the broader conversation on overcriminalization. Increasingly, our immigration policy provides a paradigmatic example of overcriminalization, whereby governments--both state and local--are creating "too many crimes and criminaliz[ing] things that properly should not be crimes." (7) Like the war on drugs before it, the growing war on unauthorized migration is suddenly and dramatically being waged through the criminal justice system. The distorting effects of this use of state and federal criminal justice systems are only beginning to show. (8) Therefore, it seems particularly critical for scholars concerned with overcriminalization to take stock of recent developments in immigration enforcement.
This Article argues that contemporary immigration policy is a site of overcriminalization. To explain how this came to be the case, the Article first evaluates the major developments in immigration law and immigration enforcement that have increased the criminalization of immigration. In the latter half of the twentieth century, three important assumptions undergirded immigration enforcement. The first assumption was that the federal government had the exclusive power to regulate immigration. (9) The second was that, although it was essentially the sole responsibility of the federal government to make and enforce immigration laws, the federal government was actually unable to achieve widespread enforcement of the federal immigration laws on the books. (10) And the third assumption was that state and local governments not only had no role in the regulation of immigration, but also had very little to do with the enforcement of federal immigration law. (11) Of course, these three general statements stand in for a more nuanced set of facts on the ground, but at a basic level, they generate a fairly accurate picture of the state of immigration enforcement as recently as fifteen years ago. (12)
Over the past fifteen years, however, all three of these assumptions have given way to new realities. This Article describes the transformation of these three fundamental assumptions of immigration law and discusses the new realities that have replaced them. It also explains how the resulting changes in the underlying structure of immigration law and its enforcement have increased significantly the use of the criminal law as a means to effect immigration control. Part I discusses the apparent decline of federal exclusivity in immigration regulation and the rise of state and local legislation--particularly state criminal laws--aimed at controlling migration. Part II discusses the significant expansion of federal immigration enforcement efforts and, in particular, the recent dramatic rise in the use of federal criminal sanctions as a means of enforcing immigration laws. Part III discusses the rise of state and local participation in the enforcement of federal immigration laws and the consequent increase in the policing of low-level state criminal offenses in certain communities.
While no one would dispute that the criminalization of migration has increased over the past decade, (13) this leaves open the question of whether this is an appropriate policy response or whether the resulting policies can be described as overcriminalization. Therefore, the final section of the paper explains why these policies constitute overcriminalization and suggests alternative approaches to immigration enforcement specifically and to immigration policy more generally.
THE DECLINE OF FEDERAL EXCLUSIVITY IN THE REGULATION OF IMMIGRATION
Over the past two decades, states and localities have become increasingly active in regulating immigration, defying the notion that immigration regulation is a power exclusively reserved to the federal government. This Part begins by explaining how, over the past 150 years, federal courts generally struck down sub-federal efforts to regulate immigration and articulated a very narrow set of parameters within which states would be allowed to regulate immigration. Next, this Part discusses how states and localities recently have enacted a number of provisions-primarily criminal provisions--to indirectly regulate migration. States and localities often have been forthcoming about the fact that these provisions are designed to affect immigration, for example by achieving "attrition [of unauthorized migrants] through enforcement" of these laws." (14) Rather than striking all of these laws down as impermissible, however, courts have given states a surprising amount of latitude to regulate noncitizens through their substantive criminal laws and criminal law enforcement. (15) Finally, this Part critiques states' increasing reliance on the criminal law as a tool to address the issue of migration, notwithstanding the fact that immigration generally poses little or no threat to public safety or security. (16) Ironically, sub-federal criminal law is increasingly used to manage a problem that has never been, at root, a criminal law problem. (17)
THE RISE OF FEDERAL EXCLUSIVITY IN THE REGULATION OF IMMIGRATION
The notion that the federal government has exclusive power to regulate immigration is fairly well-established as a matter of constitutional law. It is certainly true that in the early days of the nation, including much of the nineteenth century, sub-federal entities actively regulated immigration. (18) Many states had laws barring entry to paupers, individuals with certain diseases, and racially undesirable groups. (19) These barriers to entry applied not just to immigrants from other countries, but also to migrants from other states. (20) States also sought to control the composition of their populations in other ways, including through the imposition of head taxes on immigrants. (21)
It was in the context of the latter sort of initiative that the Supreme Court first began to chip away at sub-federal immigration regulation. In Henderson v. Mayor of New York, the Supreme Court declared that only Congress could regulate migration through the imposition of head taxes. (22) In the decades that followed, the federal government increasingly centralized immigration control. In 1875, Congress enacted the first restrictive federal immigration law--the Page Act--which prohibited the entry of immigrants deemed undesirable, including certain contract laborers and women who entered with the intent of engaging in prostitution. (23) The law was clearly designed and enforced so as to restrict entry of Chinese immigrants in the face of growing anti-Chinese sentiment in the western United States. (23) Indeed, Congress followed up the Page Act with the enactment of the Chinese Exclusion Act of 1882. (25) In the case upholding the constitutionality of the Act, the Supreme Court made sweeping statements about the broad power of Congress to regulate immigration, writing:
The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. (26) Over time, the statement of absolute power over immigration law was construed to limit to the federal government the power to regulate entry and exit. (27) The Court made it clear that while a state could act within its traditional spheres of state power, such as licensing of businesses, it could do so only to the extent that any indirect regulation of immigration did not conflict with the federal immigration scheme. In DeCanas v. Bica, the Court therefore upheld a California statute prohibiting the employment of unauthorized immigrants because at that time, there was no comprehensive scheme for regulating the employment of such workers. (28) But generally, the Court rather jealously protected the prerogative of the federal government in immigration enforcement. (29)
Even when policies aimed at noncitizens did not expressly contravene federal immigration law, the Court was willing to strike down state efforts to regulate noncitizens to the extent they were deemed insufficiently complementary of congressional objectives. This was obviously the case in Hines v. Davidowitz, where a Pennsylvania law that did not conflict with federal law was deemed preempted simply because the federal government occupied the field, (30) for example. But the Court also applied a similar analysis to a Texas law that would have required undocumented immigrant students to pay for their education in public elementary and high schools in Plyler v. Doe. (31) The Court struck the law down as a violation of those students' right to equal protection under the Fourteenth Amendment. (32) Since the Texas law did not create new categories of authorized and unauthorized migrants, and since it regulated an...