New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Michigan Law Review, February 2008

Abstract

The proliferation of state and local regulation designed to control immigrant movement has generated media attention and high-profile lawsuits in the last year. Proponents and opponents of these measures share one basic assumption with deep roots in constitutional doctrine and practice - immigration control is the exclusive responsibility of the federal government. As a result, assessments of this important trend have failed to explain why state and local measures are arising in large numbers, and why the uniformity both sides seek is neither achievable nor desirable.

I argue that is time to come to a modus vivendi regarding participation by all levels of government in the management of migration. To do so, I provide a functional account of sub-federal immigration regulation and demonstrate how the federal-state-local dynamic operates as an integrated system to manage contemporary immigration. The primary function states and localities play 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. 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 globalization 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.

Date of Authorship for this Version

July 2008