The states of immigration.

• Author: Su, Rick
• Position: II. States in Immigration Policy Making C. Proposition 187, Reimbursement Lawsuits, and the Road to IIRIRA in 1996 2. The State Impact through Conclusion, with footnotes, p. 1373-1407

2. The State Impact

   Proposition 187 and the rash of reimbursement lawsuits that it triggered had tremendous political influence on the development of federal immigration policy in the 1990s. None of this, however, was due to their legal or regulatory impacts. The various state lawsuits seeking federal reimbursement were all dismissed on the merits or as nonjudiciable. (170) Proposition 187 did not fare much better. Its enactment was immediately denounced by local officials in California's largest cities, many of whom refused to implement its provisions. (171) In any event, there was no need for them to do so: all of Proposition 187's central provisions were enjoined by federal courts almost immediately after it was enacted. (172) Given that Proposition 187 was drafted in part to challenge Supreme Court precedent, the legal challenge against the law was, of course, anticipated and welcomed. (173) Yet when the injunction was finally ripe for appeal in 1998, the State instead sought a mediated agreement that maintained the injunction. (174) In the years since the enactment of Proposition 187, California's leadership had changed and the state was no longer supportive of the law. (175) Thus, by the 1990s, Proposition 187 was all but dead as a legal matter.

   The legal challenge against Proposition 187 led to its demise. It did not, however, dampen Proposition 187's impact--nearly every one of its provisions had already become federal law. The comprehensive reforms of 1996, which included the passage of the IIRIRA and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), were based explicitly on the same benefit-restriction theme that underlaid Proposition 187 and the state reimbursement lawsuits. With the sole exception of public education, undocumented immigrants were specifically denied all the public services and benefits that Proposition 187 identified. (176) As PRWORA explained, it was now "a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits." (177) But federal law also went further. The new laws imposed severe restrictions upon legal immigrants to ensure that "the availability of public benefits not constitute an incentive for immigration to the United States." (178) Receipt of federal benefits was curtailed. (179) States were also authorized to do the same for their own programs, including making distinctions between different categories of legal immigrants in ways that had been questioned by the Supreme Court. (180)

   Benefit restrictions, however, were not all that Proposition 187 and the comprehensive reforms of 1996 shared. Federal law also incorporated the various enforcement measures contained in California's initiative. Criminal penalties were increased and new crimes were created for those that either used or enabled the use of false identity documents to claim immigrant admission, public benefits, or employment. (181) Federal law also adopted Proposition 187's "anti-sanctuary" provision, barring any state or local official from refusing to participate in federal immigration enforcement efforts. (182) Federal lawmakers went further to encourage verification of immigrant status at the state and local level by requiring federal agencies responsible for immigration to respond to any and all inquiries from state and local officials. (183) Indeed, taken as a whole, it appeared that the federal law incorporated nearly all the provisions of Proposition 187 in one way or another. Moreover, federal policy was beginning to reflect the idea that states and localities might play an important enforcement role as well.

   The enactment of IIRIRA in 1996 showed how state involvement was capable of shaping federal immigration policies. States were able to exert this influence without having to implement any regulation or actually prevail in a legal challenge. At the most basic level, Proposition 187 and the state lawsuits that followed served as an important political platform for drawing public attention to the issue of undocumented immigration and setting forth a proposal about how it should be handled. As noted earlier, when Proposition 187 was first introduced, immigration was not especially prominent as a matter of state or national concern, (184) Party leaders were also wary of delving into the issue, (185) Much of that changed with the introduction and success of Proposition 187 at the polls, (186) If it was possible to ignore the issue before, these state activities demanded federal attention on immigration. (187) In this respect, political actors, like the authors of Proposition 187 and California Governor Wilson, were able to leverage a ballot initiative into a national controversy that made federal reforms much more likely.

   State activity also influenced the types of reform that arose by reframing the issue of immigration in the political conversation. If the "employment magnet" was the theme of the 1980s, prompted in large part by the state employer sanction laws that led up to that debate, (188) Proposition 187 and the reimbursement lawsuits centered the focus in the 1990s squarely on the issue of the so-called benefits magnet." (189) Proposition 187 enshrined the theory that immigrants were entering the U.S. illegally to take advantage of social services like public education and welfare. (190) The emphasis on the fiscal costs of immigration after the introduction of Proposition 187 cannot be understated: questions about the financial strain of immigration and the relative burdens that each level of government had to bear dominated the political debates leading up to the 1996 reforms. Proposition 187 was bookended by three major reports about what burdens immigrants imposed on states and localities. (191) As a result, nearly all of the political commentary and academic discourse were focused on the accuracy of these findings and what implication, if any, they should have on how our immigration policy should be reformed. (192)

   As was the case in 1986, states also appeared to play an important role in setting the agenda for immigration policy making in 1996. States entered the conversation by focusing on the impact that immigration had on the states' traditional responsibilities over education, healthcare, and public benefits. Through this window, they ignited a contentious public debate that centered on the fiscal cost of immigration and the need to increase penalties on those that supported undocumented immigrants. Furthermore, they did this in the absence of any real regulatory effect.

   There is one twist to the success of states in this particular case, however: it may have actually hurt the fiscal interests of the states in the long term. Although the 1996 reforms gave states the authority to deny undocumented and legal immigrants certain public benefits, they also pulled the federal government out of funding federal means-tested programs for those immigrants as well. (193) This comported with the political message that states were sending about "benefits magnets." But it also meant that if states wanted to provide some assistance to legal immigrants, they would have to do it without any federal matching funds. This was precisely what happened. Not only did nearly every state ultimately decide to provide some of these benefits but they did so entirely from their own coffers. (194) Because of the tremendous cost that this imposed on states, federal amendments were eventually introduced that re stored federal funding for some but not all of these benefits. (195) Not surprisingly, states played an important role in these changes as well.

   To summarize, the involvement and influence of states in the enactment of IRCA in 1986 and IIRIRA in 1996 demonstrate that the venue-shifting theory is a useful framework for understanding state involvement in immigration. In neither of these cases did it appear that states were acting according to more traditional theories of federalism: as laboratories of policy experimentation (196) or as independent sovereigns focused on local issues. (197) The history of immigration policy making shows the powerful impact states can have on the development of federal immigration policy and why political actors seize these opportunities when they appear. This influence is also not dependent on whether state regulations are legally enforceable or even capable of being effectively implemented. Thus, arguments about jurisdictional boundaries or institutional capacity are unlikely to have much of an effect on the behavior of states or how political actors use them. The role of states in this regard, of course, is not new. When it comes to state involvement, IRCA and IIRIRA share many similarities to earlier immigration developments. One issue remains: whether this is just history or whether it continues to be relevant today.

   3. MODERN DEVELOPMENTS

   How does venue-shifting hold up today? As the immigration debates enter the twenty-first century, states are once again in the spotlight. Many observers believe, however, that this time is different. One reason for this thinking is the sheer number of immigration-related laws that have been enacted at the state level. (198) Another reason is the growing severity of state responses, with many states competing over the title of having the "toughest" laws on immigration. (199) In these respects, the stakes of state involvement today seem more than just political.

   It is always difficult to examine an ongoing political controversy: passions are high, details unclear, and outcomes uncertain. Even so, there are many signs to suggest that states today continue to follow the familiar script of venue-shifting. States are finding opportunities for participation, including jurisdictional overlaps that have been created by federal policy in recent years. (200) Political actors at all levels of the federal system--including repeat players that have...