Rebellious state crimmigration enforcement and the foreign affairs power.

• Author: Fan, Mary

TABLE OF CONTENTS INTRODUCTION I. DISSENTING STATE CRIMMIGRATION ENFORCEMENT A. The Battle Over Crimmigration Enforcement Policy B. National Enforcement Policy and Externalities Management II. THE DANGERS OF UNCOOPERATIVE CRIMMIGRATION OVERENFORCEMENT A. Caste-Carving State Immigration Enforcement B. Foreign Policy Impairment III. PLENARY POWER AS A PROTECTION AGAINST STATE Overenforcement A. A Bulwark Against Localized Animosity B. Giving Due Weight to Executive Statements of Interest CONCLUSION INTRODUCTION

The theory that state laws creating immigration offenses avoid trespass on the federal power over foreign affairs, (1) foreign commerce, (2) and nationality rules (3) as long as state laws mirror and enforce federal standards has gone viral. (4) In a heated pre-election-year summer, several states passed laws emboldened by this "mirror theory" (5) even as Arizona petitioned the Supreme Court for review of the Ninth Circuit's injunction against its internationally controversial template law. (6) The Supreme Court granted certiorari on the question of the constitutionality of Arizona Senate Bill 1070. (7) A host of lawsuits are pending against similar state immigration legislation, including a suit by the United States against Alabama's even more aggressive enactment. (8) The oft-proffered rallying call of interventionist states is that if the federal government will not enforce its immigration laws to the satisfaction of the dissident states, then the states can and will step in by creating their own criminal immigration laws and civil disabilities. (9)

Emboldened by the mirror theory, states argue that they are merely engaging in "cooperative enforcement," not inconsistent legislation. (10) The standard argument is that as long as the constraints and duties imposed on regulated people and entities by state immigration regulation are essentially the same as federal law, there is no constitutional infirmity. (11) The legal and popular debate is largely being framed by this formalist lens that focuses on congruence between the legal standards on the books. "Cooperation" is shallowly defined as mere formal congruence in standards between those defined by Congress and those enforced by the states. But the life of the law is more than its formal reflection. (12) Executive enforcement policy brings the law into being in reality. (13)

In our tripartite system of checks and balances, the President and executive enforcement policy play a crucial role in shaping the law in reality. (14) Enforcement is a relatively neglected issue in the federalism literature, which largely focuses on regulatory power. (15) Executive enforcement policy is particularly important when it comes to crimmigration--the criminalization of immigration--because executive discretion balances sensitive foreign affairs considerations that the constitutional structure entrusts to the national executive. (16) Foreign affairs concerns are especially sensitive when it comes to states directing criminal law enforcement to focus on suspected non-nationals because this sparks other nations' fears that their members--whether lawfully or unlawfully present in the United States--will be demonized and treated as criminals because of national origin, language, culture, and race. (17)

This Article challenges the standard mirror theory assumptions and argues that inconsistent state crimmigration enforcement policy and resulting foreign affairs complications render infirm the spate of new state immigration policing laws. Though federalism controversies predominantly focus on state power to regulate, one must not overlook the power to define enforcement policy. (18) This Article argues that conflicting state immigration enforcement policy impermissibly intrudes on the national executive's foreign affairs power, even if the formally prescribed constraints on regulated persons are mirror images. State intervention in immigration enforcement cannot duck below the Constitution's carefully calibrated balance by mirroring form while trammeling the point of national supremacy.

Divergent enforcement policies imperil sensitive foreign affairs and national security interests that constitute the rationale for national supremacy. (19) Plenary power over foreign affairs has been vigorously decried as a basis for stripping immigrants of protections and shielding discriminatory immigration laws from judicial review. (20) This Article argues, however, that plenary power principles counsel for judicial intervention when the states trammel on federal immigration enforcement authority to the detriment of the conduct of foreign affairs.

This Article distinguishes the new state immigration laws seeking "attrition through enforcement," which transform suspected undocumented workers into an untouchable caste, from the Legal Arizona Workers Act, a statute regulating employer licensing that was recently upheld in Chamber of Commerce v. Whiting. (21) The distinction that makes a difference is conflict with a national enforcement policy calibrated to avoid turning suspected foreign nationals into untouchable caste-like "subjects of suspicion and abuse," thereby marring community and international relations. (22) The conflict is manifested by the rare phenomenon of direct challenges to the state immigration legislation by the United States and filings documenting impairment of foreign relations, an area of traditional federal dominance. (23)

The account of the complex calculus of crimmigration enforcement policy redresses the impoverished understanding of national executive discretion advanced by states defending intrusive immigration laws. States contend that "resources and obstruction at the state or local law enforcement level" account for what they view as a suboptimal level of national immigration enforcement. (24) on this assumption, advocates of state immigration criminalization argue that they are merely cooperating to enhance enforcement rather than acting at odds with the national executive, and express shock that the national executive has moved to enjoin state immigration laws. (25) This oft-proffered argument misses the point that the national executive's crimmigration prosecutorial policies must balance much more complex factors--including foreign policy--in determining the optimal level of enforcement. (26)

The analysis in the immigration context also enriches our understanding of what cooperative--and uncooperative--enforcement means. Formal congruency in legal standards for regulated persons and entities does not render federalism cooperative when enforcement policies and duties on law enforcement officers are at odds between the state and federal government. The immigration context is a prime example of the import of congruity in enforcement policy for the cooperative federalism claim to ring true because of the foreign policy concerns at stake.

Part I argues that despite the claim of "cooperative federalism" by defenders of the state laws, the state enactments are about uncooperative enforcement challenging federal policy's balance of enforcement; protection for racial, cultural, and linguistic communities; and foreign policy commitments. Part II explores the dangers of rebellious state overenforcement contravening national enforcement policy through a caste-carving strategy that imperils foreign policy objectives. Part Ill explores how plenary power doctrine, though oft critiqued as protection stripping and a basis for judicial nonintervention, can inform in our contemporary context judicial intervention against overreaching state laws. This Part also argues for the need to give substantial weight to statements by the Executive on the propriety of state immigration control interventions because of sensitive foreign affairs implications.

1. DISSENTING STATE CRIMMIGRATION ENFORCEMENT

   While the focus of public and legal contestation is often on the content of the formal laws, it is in the opaque zone of prosecution and executive enforcement policy-making that the law that gets lived is forged. (27) The vast breadth and span of criminal laws on everything from holding a marijuana cigarette to giving a ride to an undocumented immigrant make enforcement policy crucial to defining the law experienced in reality. (28) Not everyone who falls within the wide span of the criminal law is prosecuted--even when caught. (29) Nor is the investigative line pushed to the constitutional limit to ferret out and arrest every possible transgressor. (30) Authorities exercise judgment in deciding which categories of cases are worth the fiscal and community costs of investigation and prosecution, and what degree or level of investigation and prosecution is warranted. (31)

   In the criminal context, enforcement judgment is typically locally tailored to be more responsive to community concerns and context. (32) Even in areas of concurrent federal jurisdiction, such as securities or antitrust, oftentimes elected local enforcers may be more attuned to regional or local impact, have better information access, and pursue more ambitious reform, such as former New York Attorney General Eliot Spitzer's campaign against Wall Street misdealing. (33) In the typical criminal context, the benefits of localism do not come at the cost of wreaking negative national externalities. Cleaning up the local burglary gang, heroin ring, or bid-rigging racketeering enterprise, for example, improves the local community without undermining countervailing national interests. (34) Indeed, local campaigns may even have collateral national benefits, such as the tobacco probe by former Mississippi Attorney General Mike Moore that massed into a forty-state movement, resulted in a large settlement, changed industry practices, and led to a criminal investigation. (35)

   When it comes to the criminalization of immigration, however, the balance of power and discretion is inverted because immigration implicates foreign...