The proliferation of state and local regulation designed to control immigrant movement generated considerable media attention and high-profile lawsuits in 2006 and 2007. Proponents and opponents of these measures share one basic assumption, with deep roots in constitutional doctrine and political rhetoric: immigration control is the exclusive responsibility of the federal government. Because of the persistence of this assumption, assessments of this important trend have failed to explain why state and local measures are arising in large numbers, and why the regulatory uniformity both sides claim to seek is neither achievable nor desirable.
I argue that the time has come to devise a modus vivendi regarding participation by all levels of government in the management of migration. To do so, I provide a functional account of subfederal immigration regulation and demonstrate how the federal-state-local dynamic operates as an integrated system to manage contemporary immigration. The primary function of states and localities is to integrate immigrants into the body politic and thus to bring the country to terms with demographic change. This process cannot be managed by a single sovereign, and it sometimes depends on states and localities adopting positions in tension with federal policy.
Given these dynamics, I offer a reformulation of existing federalism presumptions in the immigration context. These will not be primarily for application by courts, though courts should abandon constitutional or strong field and obstacle preemption theories in immigration cases. Instead, I offer a framework for federal and state lawmakers intended to restrain their impulses to preempt legislation by lower levels of government and to create incentives for cooperative ventures in immigration regulation.
Counterintuitively, the changes wrought by international economic integration demand strong institutions beneath the national level Immigration highlights this convergence of the transnational and the local. Only by assimilating our understandings of immigration federalism to this realization can we explain and harness the value of state and local regulation.
TABLE OF CONTENTS INTRODUCTION I. THE EXCLUSIVITY LIE A. Conventional Wisdom B. Emergent Reality 1. The Global City and its Shadow 2. The Ambivalent State 3. Embracing Diversity II. STATES AND LOCALITIES AS AGENTS OF INTEGRATION A. Integrating Lawful Immigrants., 1. Illinois 2. North Carolina 3. Iowa B. The Particular Problem of Unauthorized Migration 1. A Restrictionist Typology 2. Day Labor Centers 3. Sanctuary Laws 4. In-State Tuition III. REIMAGINING THE FEDERAL-STATE-LOCAL RELATIONSHIP. A. The Rise and Fall of Federal Exclusivity B. Toward a New Power-Sharing Theory 1. Division of Labor 2. Preemption and Judicial Restraint 3. Preemption and Lawmaking 4. Preemption and the City C. Confronting Externalities and the Value of Interstate Competition CONCLUSION INTRODUCTION
The processes of global integration are changing how governments do business. Nowhere is this change more apparent than in the mechanisms lawmakers at every level of government are employing to respond to the ways in which immigration is reshaping American society. (1) Among the most notable regulatory trends of recent years is the rise of state and local efforts designed to control immigrant movement, define immigrant access to government, and regulate the practices of those with whom immigrants associate in the private sphere, namely employers and landlords. In the first six months of 2007 alone, more than 1400 bills addressing immigration and immigrants in some capacity were introduced in state legislatures across the country, and nearly 200 of those bills became law. (2) The so-called "Illegal Immigrant Relief Acts" ("IIRAs"), passed by small towns across the country and made famous by Hazleton, Pennsylvania, (3) have generated particular media scrutiny and given rise to high-profile lawsuits, two of which have resulted in the invalidation of ordinances that would regulate employers and landlords in their dealings with unauthorized immigrants. (4)
States have always been active in immigration regulation, of course. In the early republic, state inspection laws and the imposition of duties on migrants' entrance functioned as immigration law. (5) In the twentieth century, states made occasional attempts to crackdown on employers who hired unauthorized workers (6) and restricted immigrant access to public benefits. (7) But, as this Article reveals, the trend in state and local immigration regulation in the twenty-first century has been dramatic, and Congress's inability to pass comprehensive immigration reform in recent years likely means that states and localities will continue to be highly active in this area.
These current trends, despite having historical antecedents, are in significant tension with a doctrine articulated by the Supreme Court in the late nineteenth century--that immigration control is the exclusive responsibility of the 'federal government, or that the Constitution assigns exclusive and nondevolvable power over immigration to the federal government. This exclusivity principle has become deeply entrenched in constitutional and political rhetoric. Indeed, proponents and opponents of current state and local measures agree on one thing: the federal government should be managing migration. Proponents of crackdown measures claim to be compensating for the federal government's failures, and opponents excoriate state and local officials for exceeding the bounds of their regulatory authority.
With this Article, I set out to resolve this contradiction between rhetoric and reality by calling for a modus vivendi regarding immigration regulation by all levels of government. To achieve this working compromise, we must move beyond federalism debates as they are currently framed. Scholars who have addressed immigration federalism largely have focused on whether the national government or the states will be better at protecting or advancing immigrants' interests--empirical claims on which the evidence is mixed. (8) Missing from the discussion is a functional account that explains why state and local measures have arisen with increasing frequency over the past five to ten years, and how this reality on the ground should reshape our conceptual and doctrinal understandings of immigration regulation.
In the pages that follow, I provide that missing functional account. I argue that the federal government, the states, and localities form part of an integrated regulatory structure that helps the country as a whole to absorb immigration flows and manage the social and cultural change that immigration inevitably engenders. The primary function states and localities play in this structure is to integrate immigrants, legal and illegal alike, into the body politic. By demonstrating how states play this role, I establish the simple proposition that immigration regulation should be included in the list of quintessentially state interests, such as education, crime control, and the regulation of health, safety, and welfare, not just because immigration affects each of those interests, but also because managing immigrant movement is itself a state interest.
The federal exclusivity principle, on its surface, is not inconsistent with the proposition that states help immigrants integrate, to be sure. But I demonstrate that the integration challenge sometimes requires states and localities to take steps that resemble immigration controls. (9) In fact, the process of immigrant integration sometimes depends on entities like states and localities adopting positions in tension with federal immigration policy, particularly in relation to unlawful immigration. In other words, managing migration writ large depends on policy experimentation that sometimes produces contradictory results. The uniformity called for by actors on both sides of the debate is not only difficult to achieve, it is also often counter-productive. Once we see state and local regulation in the perspective I provide, it becomes clear that the federal exclusivity principle obscures our structural need for federal, state, and local participation in immigration regulation. (10) Today's realities suggest different structural imperatives--namely the need for subfederal regulation. The persistence of the exclusivity principle, however, keeps the integrated system I bring into view from functioning to its potential, precludes us from understanding how and why power over immigration should be shared, and prevents us from harnessing the value of the federal-state-local dynamic on immigration matters. (11)
Of course, even if state and local participation in immigration regulation performs a valuable function, such participation could still be constitutionally preempted. But my account of current regulatory reality actually helps to undermine the federal exclusivity principle as a doctrinal matter. Federal exclusivity was neither a matter of original practice, nor is it specified in the Constitution. Rather, the concept of exclusive federal control over immigration emerged through Supreme Court doctrine for functional, structural reasons: the perceived need to have a single, strong sovereign manage foreign affairs. Even if those functional concerns were valid when declared, their foundations have eroded since, and federal exclusivity has become a formal doctrine without strong constitutional justification.
Neither abandoning federal exclusivity nor accepting the integrated system I describe means that the federal government should not exercise strong leadership on aspects of the immigration issue or that uniformity on some matters is not essential. Under a functional analysis, efficiency and coherence require federal control over the formal admissions and removal processes. Strong federal leadership also may be necessary to prevent states and localities from...