Undocumented no more: the power of state citizenship.

• Author: Markowitz, Peter L.

INTRODUCTION I. THE CONSTITUTIONAL STATUS OF STATE CITIZENSHIP A. Historical Precedent for Inclusive State Citizenship Schemes B. The Constitutional Foundation of State Citizenship C. The Fourteenth Amendment: Establishing a Constitutional Floor, but Not a Ceiling, for State Citizenship II. STATE CITIZENSHIP AND THE LIMITS OF FEDERAL IMMIGRATION SUPREMACY A. The Limits of Congressional Preemptive Power over State Citizenship Schemes B. Traditional Preemption Analysis: Properly Drafted Inclusive State Citizenship Laws Would Not Conflict or Interfere with Federal Immigration Law 1. State citizenship laws are not preempted under the doctrine of field preemption 2. State citizenship laws are not preempted under the doctrine of conflict preemption III. EXPLORING THE BOUNDARIES OF STATE POWER: WHAT WOULD STATE CITIZENSHIP ACHIEVE? A. Limits and Dangers of Inclusive State Citizenship Schemes B. Individual Responsibilities and Benefits of State Citizenship C. Collective Benefits of State Citizenship CONCLUSION INTRODUCTION

In many ways, the regulation of immigration is a quintessential federal function. Developing a uniform national scheme that dictates who may enter the United States, who must leave, and who may become a national citizen is a power exclusively reserved to the federal government. (1) However, if there is one thing in the immigration debate that observers across the political spectrum agree upon, it is that the federal immigration system is badly broken and that the federal government seems unable to remedy the problems. Despite repeated and concerted efforts at the federal level, Congress has been unable to pass meaningful immigration reform legislation through these early years of the twenty-first century. (2) Meanwhile, the consequences of our broken immigration system are felt most acutely in local and state communities, where immigrants live.

While Congress has been unable to act on immigration in the last decade, there has been an explosion of legislative activity on a wide variety of immigration issues in statehouses across the nation. (3) Most notably, as part of an explicit strategy developed by a small group of conservative legal thinkers, restrictionists have obtained popular support for state laws aimed at ridding communities of unwanted immigrants. (4) I use the term "restrictionist" throughout this Article to refer to individuals who see enforcement, the expulsion of undocumented immigrants, and the restriction of future immigration as the primary solutions to our current immigration crisis. Restrictionist laws--of which Arizona's Senate Bill 1070 (S.B. 1070) is the most well known (5)--generally seek to empower state officials to directly enforce federal immigration laws, (6) or seek to advance an "attrition through enforcement" (7) strategy, cut- ting off or encumbering basic necessities of life in order to encourage noncitizens to either "self-deport" (8) or at least leave the state. (9)

Integrationists have also turned to statehouses in recent years (10) to advance their own immigration agendas, enacting laws providing driver's licenses, (11) identification cards, (12) and in-state tuition (13) to undocumented immigrants. (14) I use the term "integrationist" throughout this Article to refer to individuals who see the fuller inclusion of undocumented immigrants into American society, including the creation of a pathway for undocumented immigrants to obtain American citizenship, as a primary part of the solution to our current immigration crisis. Integrationist state campaigns, however, have generally been less aggressive than their restrictionist counterparts, insofar as they have not tended to assert a new role for states in defining who does and does not belong. Instead, integrationists have expended significant resources playing defense--working to undo or prevent aggressive restrictions laws--and have moved incrementally with affirmative assertions of state power.

While there are several factors that can help explain the asymmetric use of state power by integrationist and restrictionist immigration advocates, (15) a critical and underappreciated piece of the puzzle is that restrictionists have demonstrated a superior understanding of how state laws can be used to shape the immigration debate. (16) Restrictionist state efforts have captured headlines and reinforced themes of criminality, national security threats, and lax border enforcement, which have consequently come to dominate popular discourse around immigration. Integrationists, on the other hand, have failed to fully master the use of state policy as a tool to shape popular perceptions of the immigration issue. This asymmetry has generally played to restrictionists' benefit as, even in legal defeat, (17) their efforts have returned significant rewards by cementing a national narrative on immigration, which has continued to stymie any integrationist effort at federal immigration reform.

Integrationist discomfort with the aggressive insertions of states into the national immigration debate is both understandable and misplaced. It is understandable because the primary, and most successful, legal arguments integrationists have used to curb the most abusive state immigration laws have focused on the preemption doctrine and themes of federal exclusivity. (18) Their discomfort is misplaced, however, because the fatal flaw in most restrictionist state efforts is not the states' desire to express a normative view on immigration and shape our national debate, which would be an appropriate and productive role for states. Instead, the defect in these laws has been that they violate immigrants' federal constitutional rights and intrude upon the federal government's exclusive authority to regulate who may enter the United States and who must leave. (19) The relative timidity of integrationist efforts has resulted in a lopsided dialogue, with vocal restrictionist-leaning states shaping our national discourse while integrationist-leaning states have remained muted.

While an important body of scholarship has chronicled the new role that states are playing in immigration matters, (20) integrationist immigration scholars have yet to fully investigate the outer boundaries of state power to regulate in the immigration arena--in particular, the power of states to define their own citizenry. (21) There is, of course, an extraordinarily robust, indeed vast, scholarship on the concept of citizenship spanning a wide variety of disciplines. (22)

There is a more focused literature regarding the nature of state citizenship and the Fourteenth Amendment's prohibitions against restrictive definitions of state citizenship. (23) But there is virtually no modern scholarship that explores the power of states to advance inclusive constructions of state citizenship--to extend state citizenship more broadly than the federal government. (24) This Article seeks to begin filling that void.

The first effort to enact an inclusive citizenship scheme of the type discussed in this Article is currently underway in the State of New York. (25) This author has played a primary role in shaping a bill that would grant New York state citizenship to certain undocumented immigrants. If enacted into law, the rights that accompany state citizenship would fall into three categories: state political rights (for example, voting); rights of access to state public programs and benefits (for example, public health care programs, in-state tuition, and driver's licenses); and rights to protection against mistreatment (for example, protection under antidiscrimination statutes). The contemplated state citizenship scheme would not purport to confer national American citizenship, nor would it necessarily insulate state citizens from deportation. Although other states have yet to follow suit, the nascent New York effort provides a useful example through which to explore the boundaries and utility of state power in the immigration realm.

This Article argues not only that states have the power to grant citizenship to undocumented immigrants, but also that a movement among integrationist states to exercise this power is normatively desirable. The contemplated state citizenship schemes would assist with the integration of undocumented immigrants, thereby helping to stabilize families and encourage healthy economic activity. Perhaps more importantly, such a movement could powerfully reorient our national immigration discourse around more accurate and productive themes--such as democracy, family, and economic vitality. This reorientation could, in turn, move us closer to eventual federal reform.

With the increasingly intransigent gridlock that characterizes the federal legislative system, states are assuming a new role in national policymaking. In the movements for marriage equality and legalization of medical marijuana, for example, states have moved policy where Congress could not. (26) By developing innovative solutions to national problems--acting as policymaking laboratories. (27) in the best sense--states are increasingly the engines that drive progressive national political changes. The effort to enact inclusive state citizenship schemes, should it gain political traction, has similar potential to drive progressive national policy. Indeed, if integrationists aim to leverage state power to reorient our national discourse on immigration, express in the most powerful terms possible their judgment that undocumented immigrants are members of our political community, and integrate those immigrants as fully as possible into civil society, no better tool exists in the state arsenal than state citizenship. (28)

This Article proceeds in three Parts. In Part I, I explore the constitutional status of state citizenship and conclude that longstanding Supreme Court precedent, the federalist structure of the Union, the Fourteenth Amendment, and the history of our national practices related to...