Issue #33, Summer 2014

Law and Borders

Leaving immigration policy to the states may sound scary. But not every state is Arizona, and immigration federalism can work.

In late 2013, the California legislature and Governor Jerry Brown put immigration squarely on their agendas. The governor signed bills limiting police cooperation with federal immigration enforcement, expanding access to in-state tuition benefits for unauthorized immigrant students, and clarifying that all individuals who met the requirements to practice law in California were eligible for law licenses, regardless of immigration status. At the same time, he vetoed a bill that would have permitted lawful permanent residents to sit on juries. He observed that jury service, like voting, was “quintessentially a prerogative and responsibility of citizenship.” California, it seems, has been having its own immigration debate.

This localized immigration lawmaking, which has been happening across the country for the better part of a decade, might seem like a novel issue of our time, brought on by the federal government’s inability to reform a supposedly broken immigration system. In reality, states and cities have always found ways to shape, unsettle, and complicate national immigration policy.

California’s struggle to define immigrants’ place in the political community goes back at least as early as the late nineteenth century, when immigration-related turmoil in the state helped push Congress to simultaneously protect the civil rights of non-citizens and restrict Chinese immigration. In 1994, California played the role performed by Arizona today. Sixteen years before Arizona’s Senate Bill 1070 sought to use state and local police powers to clamp down on illegal immigration, California voters passed Proposition 187, which attempted to prevent unauthorized immigrants from receiving social services and health care and attending public schools. The initiative roiled national public opinion and prompted litigation in federal court by progressive groups, an effort that succeeded at the trial level but ended when Democrat Gray Davis replaced Republican Pete Wilson as governor and abandoned the defense of the law.

As these events suggest, immigration federalism can produce both pro-immigrant and pro-enforcement policies. Arizona’s recent enthusiasm for enforcement, shared by states such as Alabama, Georgia, and Oklahoma, represents only part of the picture. On the other side are numerous cities and states across the country in line with California’s current integrationist orientation, which are adopting policies to resist federal immigration enforcement (Chicago and Washington, D.C.) and to extend benefits such as in-state tuition and drivers’ licenses to unauthorized immigrants (Illinois and Maryland). The complexity is visible even within states. Take New York, where New York City ensures access to all city services regardless of immigration status, but where the state legislature in Albany recently rejected a bill that would have extended financial aid to unauthorized students enrolled in higher-education programs. Whatever happens at the federal level, the country will continue its debate through the institutions of federalism, often through the passage of state and local laws that reflect competing visions of immigrants’ place in the polity.

When we adopt this holistic perspective, it becomes clear that the resistance by progressive organizations and Democratic politicians to the immigration federalism practiced by the likes of Arizona does not amount to a rejection of immigration federalism per se, but rather of the expansion of enforcement through state and local police departments. Indeed, progressives have found much to dislike in federal immigration policy. The Obama Administration has presided over very high numbers of deportations and deployed new technologies to enhance its ability to identify removable immigrants. Accordingly, some advocates invoke the Tenth Amendment and state autonomy—traditionally conservative rallying cries—to justify state and local resistance to federal programs.

The question thus becomes whether it is possible to have the “good” federalism without the “bad.” Does embracing federalism when it produces progressive outcomes mean accepting it in all of its manifestations? Intellectual integrity might demand it, but politics and law might not. In a narrow, doctrinal sense, it may be possible for progressives to have large slices of their cake and eat it, too. On the enforcement side, the Supreme Court in 2012 significantly curtailed state authority to use local police powers to help enforce federal law. In Arizona v. United States, the Court held that federal statutes and the Administration’s enforcement priorities pre-empted most of Arizona’s S.B. 1070, which the Court concluded fell outside the zone of permissible cooperation. Moreover, even though Tenth Amendment claims are unlikely to find favor in court, states and localities still retain some autonomy to resist participation in federal immigration enforcement. Even more importantly, many measures that seek to integrate immigrants—like in-state tuition and identification laws—are very unlikely to run afoul of the Court’s pre-emption analysis in Arizona. Legally speaking, then, it may well be possible to mute Arizona-style federalism while amplifying the California kind designed to protect immigrants’ interests.

But my concern here is not with this sort of strategic, lawyerly approach to immigration federalism. After all, Republicans could deploy the same full-throated defense of federal power made in the challenge to S.B. 1070 to quash pro-immigrant activity through federal legislation. More fundamentally, I argue that we have a national interest in working out difficult moral and public policy matters, like immigration, through state and local institutions—for three reasons.

First, the varied approaches to immigration both within and among states reflect ideological diversity that our political system should channel and even facilitate, not suppress. Granted, this diversity does not always reflect uniquely or genuinely local interests and is often nationally coordinated with advocacy groups or partisan networks. But this diversity nonetheless reflects legitimate democratic disagreement: Are unauthorized immigrants lawbreakers or rights-bearing members of the community?

Second, regardless of how these ideologies align in any given jurisdiction, states and localities face institutional imperatives—sometimes imagined, other times real—that can cause their interests to diverge from those of the federal government. The growth of immigrant communities implicates states’ and localities’ interests in schools, law enforcement, public benefits, and political participation. A coherent immigration policy takes these interests into account.

And third, it would be a mistake to assume that the federal government has a monopoly on virtue, even—especially—on an issue that Supreme Court doctrine and public discourse traditionally cede to it. In fact, when it comes to matters such as integration policy, states and localities actually should be in the lead. More generally, a federalist debate can check, curb, and improve federal policy, even if in some instances it becomes appropriate for the federal government to take control. The rub is that identifying those instances depends on one’s ideological orientation, which makes it difficult to defend the case for a “progressive” or “conservative” federalism without sometimes abandoning structural principles in favor of political preferences or other substantive values.

Taken together, these principles mean that states and localities should be recognized as having substantial space to participate in debate through policy-making, including in ways traditionally left to the federal government acting alone. Defining the contours of that space is the central task for a theory of immigration federalism—a theory we need as the immigration debate forges ahead, with Congress or without. Despite the current congressional impasse, mayors, governors, the President and his executive branch, and interest groups are all hashing out the details of our immigration regime. That the Supreme Court weighed in on immigration federalism for the first time in three decades only makes it all the more crucial to develop a constructive policy approach to immigration federalism.

For the political strategist, understanding the dynamics of immigration federalism will help identify where the next political battles will be fought, and around what sorts of issues. For the policy wonk, embracing immigration federalism will be crucial to identifying the problem-solving potential of different intergovernmental relationships and regulatory arrangements. And for the “small-d” democrat, accepting immigration federalism will help give voice to variable public opinions on matters of fundamental national importance.

Federalism As the New Nationalism

To put the dynamics of immigration federalism in context, it’s helpful to pull back and examine federalism more generally. In a recent symposium in the Yale Law Journal, various scholars (myself included) explored how state and local politics and institutions increasingly shape our national politics and policy. As Heather Gerken writes in introducing the symposium’s central conceit—of “federalism as the new nationalism”—the institutions of federalism can serve as “tool[s] for improving national politics, strengthening a national polity, bettering national policymaking, entrenching national norms, consolidating national policies, and increasing national power. State power, then, is a means to achieving a well-functioning national democracy.”

This national democracy does not depend on the federal government always taking the lead; often, the federal government’s role in advancing debate will be secondary or complementary to activity at the state and local level. In many circumstances, immigration included, the federal government may itself have an interest in a decentralized debate. This is not to say that local concerns do not exist, or that the only value of decentralized government is in its facilitation of national conversations. Rather, it is to suggest that robust state and local institutions can and do contribute meaningfully to national integration and debate. Most moral and policy debates are nonlinear, and the institutions of federalism provide a framework for working out conflict and problem-solving over time.

This version of federalism has been on vivid display in recent years in the evolution of public opinion and policy in both conservative and progressive directions. On the conservative end of things, federalism has been central to shifting national discourse on gun rights (toward greater protection) and abortion rights (toward greater restriction). Activists have concentrated resources in receptive jurisdictions to advance their agendas in ways that would not have been possible if the target had been federal institutions alone.

The trajectory of the movement for marriage equality has been similar. It is by now commonplace to acknowledge the centrality of federalism to the advancement of same-sex marriage. Anti-marriage-equality referenda notwithstanding, progressive advocates have been able to work through and with local and state officials to make same-sex marriage a concrete legal practice, rather than just a subject of conjecture. State courts, simultaneously calling on their own traditions and drawing on developments in other courts, have rigorously tested the arguments in favor of same-sex marriage prohibitions and mostly found them wanting.

All of this activity has helped shift public opinion on the question and opened up space for the federal government to act. It did so most dramatically when the President and Attorney General Eric Holder decided to stop defending the Defense of Marriage Act (DOMA) in court. With that decision, the federal government put its considerable weight behind the argument that numerous state and local lawmakers had already accepted: that equality principles required recognition of same-sex marriages. Scholars continue to debate whether Justice Kennedy’s opinion in United States v. Windsor striking down DOMA depended on federalism or on equal-protection doctrine. But there is no question that developments in the states affected how the Court framed its conclusion that denying federal recognition to same-sex marriages constituted an assault on dignity and a constitutional violation.

Today, we may well be seeing a similar dynamic at work in the debate over drug policy. The Colorado and Washington referenda permitting the production and recreational use of marijuana have prompted the federal government to rethink its drug enforcement priorities. The Department of Justice has shown a cautious willingness to let the state experiments play out. Federal officials and national politicians may not yet be willing or able to support drug legalization, but many law enforcement professionals and politicians at the federal and local levels alike have a keen interest in having states de-escalate the drug policy debate by experimenting with legalization.

Federalism thus offers a vehicle for interest groups and political parties to advance concrete agendas and to turn political ideas into law. As Gerken frames it, the system gives dissenters the opportunity to govern. [See “A New Progressive Federalism,” Issue #24.] And as I have argued, institutionalization of an idea, or its transformation into regulation or bureaucratic practice, can help reveal whether that idea is just the result of an ephemeral political moment or a more lasting policy possibility.

This is not to say that federalism offers the optimal system of government. For one thing, it can be inefficient. It can also thwart the federal government’s best-laid plans. To take a notable current example, the refusal of numerous states to set up health-care exchanges under the Affordable Care Act or accept federal funds to expand Medicaid has complicated the act’s implementation.

But how do we know when the federalist debate has become destructive rather than constructive, such that a national institution like Congress or the Court should step in to consolidate a national norm or assert national power? We are on the verge of such a reckoning over same-sex marriage—it seems only a matter of time before the Supreme Court puts an end to the federalism dynamic by holding that the Constitution requires recognition of same-sex marriage by all states. But even the easy progressive response to this dilemma—that national institutions should step in to protect individual rights—raises more questions than answers. In debates percolating throughout the federal system over immigration, abortion, and gun rights, the very question is what actually qualifies as an individual right. In the face of this difficulty, it may be more constructive to emphasize a different point: Even after “nationalizing moments”—moments when one branch or another of the federal government claims control over an issue and declares a national standard—consensus can unravel, if it ever truly existed. Federalism provides a framework for managing the aftermath of such turning points.

The Renationalization of Immigration Policy

I return now to immigration federalism, to identify what is left of it after Arizona—a significant nationalizing moment—and to highlight why federalism should be of value to those interested in good immigration policy, regardless of their politics. Throughout the litigation against Arizona’s S.B. 1070, the federal government emphasized its longstanding practice of welcoming cooperation from state and local police in identifying and even detaining non-citizens who might be removable—a practice the Immigration and Nationality Act itself acknowledges and facilitates. But even though most of S.B. 1070’s sanctions mirrored prohibitions that exist in federal law, for the Obama Administration, the state’s attempts at “cooperation” went too far.

Issue #33, Summer 2014
 
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Fernando Centeno:

Very well done, thanks! Lots of food-for-thought here . . .

I do know from first-hand experience that these hot-potato issues are hashed out very privately amongst our "representatives", while they tell interested citizens on an official basis that immigration reform is "a federal issue", thereby cutting us off from influencing local & state public policy.

It isn't easy being a concerned citizen . . .

Jun 3, 2014, 12:13 PM
Pete:

While you are floating from one cocktail party to the next in your ivory tower preaching your utopian BS, people like myself who did everything by the book spent 10,000s of dollars on lawyers, 100s of hours with US consulates and forms, and waited 13 years for the Greencard all while being paid less than US colleagues, paying full taxes, paying into SS, and paying full healthcare contribution.

Not once have I been at the ER for free, paid for a car with untaxed cash, sent my children for free to college, or got free legal help.

You and your academic liberal PC hippies are making a farce out of the rule of law and destroy the faith of society and our next gen into American values, and you will be stopped.

Jul 1, 2014, 10:28 AM

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