Immigration Federalism: a Reappraisal
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\\jciprod01\productn\N\NYU\88-6\NYU603.txt unknown Seq: 1 25-NOV-13 12:34 IMMIGRATION FEDERALISM: A REAPPRAISAL PRATHEEPAN GULASEKARAM† & S. KARTHICK RAMAKRISHNAN‡ This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local offi- cials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. United States, the Court addressed, but did not settle, the difficult empirical, theoretical, and constitutional questions necessitated by these enactments and their attendant justifications. Our empirical investigation, however, discovered that most state and local immigration laws are not organic policy responses to pressing demographic challenges. Instead, such laws are the product of a more nuanced and politicized process in which demographic concerns are neither neces- sary nor sufficient factors and in which federal inactivity and subfederal activity are related phenomena, fomented by the same actors. This Article focuses on the con- stitutional and theoretical implications of these processes: It presents an evidence- based theory of state and local policy proliferation; it cautions legal scholars to † Associate Professor of Law, Santa Clara University School of Law. ‡ Associate Professor of Political Science, University of California, Riverside. This project has benefited from the comments and encouragement of several scholars in both the legal and political science disciplines, including Professors Sameer Ashar, David Ball, Eleanor Brown, Jessica Bulman-Pozen, Jennifer Chacon, ´ Gabriel J. Chin, Mat Coleman, Justin Driver, Patricia Fernandez-Kelly, David Fitzgerald, Kyle Graham, Zoltan Hajnal, Bill Ong Hing, Bradley Joondeph, Taeku Lee, Stephen Lee, Hiroshi Motomura, Lise Nelson, Michelle Oberman, Cristina Rodr´ıguez, David Rubenstein, Neil Siegel, Reva Siegel, John Skrentny, David Sloss, Sarah Song, Juliet Stumpf, Daniel Tichenor, Jonathan Todres, and David Yosifon. The research contained in this paper was presented at the Conference of Asian Pacific American Law Faculty; the American Constitution Society’s Conference on the Constitutionality of State and Local Immigration Laws; the 2012 International Migration Conference at the Center for Comparative Immigration Studies at the University of California, San Diego; seminars at the City University of New York Graduate Center and Princeton University; and faculty workshops at the University of California at Irvine, Lewis & Clark, and Santa Clara University law schools. This is part of a series of papers exploring the implications of our original empirical research for state and local immigration laws. Thanks to Ulises Aguirre, Philip Brody, Keelin Haddix, and Mariko Kotani (J.D. can- didates, Santa Clara University School of Law) and to Rachel Wilf (Woodrow Wilson International Center for Scholars) for their excellent research assistance. We acknowledge the institutional support of Dean Donald Polden of Santa Clara University School of Law, the Russell Sage Foundation, and the Woodrow Wilson International Center for Scholars. Finally, we appreciate the diligence of the New York University Law Review editors in preparing this article for publication. Copyright © 2013 by Pratheepan Gulasekaram & S. Karthick Ramakrishnan. 2074 \\jciprod01\productn\N\NYU\88-6\NYU603.txt unknown Seq: 2 25-NOV-13 12:34 December 2013] IMMIGRATION FEDERALISM 2075 rethink functionalist accounts for the rise of such laws; and it advises courts to reassess their use of traditional federalism frameworks to evaluate these subfederal enactments. INTRODUCTION ................................................. 2075 R I. FEDERAL AND SUBFEDERAL IMMIGRATION AUTHORITY IN HISTORICAL CONTEXT: IMMIGRATION LAW VERSUS ALIENAGE LAW ......................................... 2083 R II. CHY LUNG AND THE FLAWED BASES OF THE NEW IMMIGRATION FEDERALISM ............................. 2090 R A. Federal Inaction and the “Mirror Theory” Defense ........................... 2094 R B. “Vital Necessity” in State and Local Immigration Policies ............................................. 2102 R 1. Hypothesized Factors Leading to Subfederal Policy Proposal and Passage .................... 2103 R 2. Data and Statistical Findings .................... 2105 R C. The Saliency of Partisanship ........................ 2107 R III. IMPLICATIONS OF THE NEW IMMIGRATION FEDERALISM ............................................ 2108 R A. Partisanship and Existing Theoretical Models of Subfederal Action ................................... 2108 R 1. Designed Policy Proliferation and the Political Safeguards of Federalism ....................... 2108 R 2. Challenges to Established Theoretical Accounts of Subfederal Immigration Action ............... 2117 R 3. The Fallacy of the Functionalist Model ......... 2120 R 4. A Cascade, Not a Steam Valve .................. 2121 R B. Courts and the New Immigration Federalism ........ 2123 R 1. The Values of Federalism ....................... 2124 R 2. Equality Concerns with the New Federalism .... 2130 R 3. The Future of Immigration Federalism .......... 2136 R CONCLUSION ................................................... 2141 R APPENDIX A ................................................... 2142 R APPENDIX B.................................................... 2144 R APPENDIX C.................................................... 2145 R INTRODUCTION Since the turn of the twenty-first century, the legal landscape of immigration has fundamentally changed as states and localities have dramatically increased their proposal and passage of immigration laws. Officials in these enacting jurisdictions offer two related expla- nations for this sudden policy proliferation. First, they claim that \\jciprod01\productn\N\NYU\88-6\NYU603.txt unknown Seq: 3 25-NOV-13 12:34 2076 NEW YORK UNIVERSITY LAW REVIEW [Vol. 88:2074 recent federal legislative inaction on immigration creates a policy vacuum that invites subfederal participation. Second, they claim they are compelled to fill this legislative void because regional challenges caused by unauthorized immigrants1—such as economic depression, overcrowding, and crime—force their hand. Prominent legal scholars, and even the Supreme Court, have accepted aspects of this two-tiered rationalization.2 In this Article, we argue that this explanation for the current era of immigration federalism is theoretically, legally, and descriptively flawed. Moreover, these misconceptions have serious consequences for the ways in which courts, scholars, and officials ana- lyze and comprehend subfederal immigration regulation. This Article reappraises the phenomenon and offers a necessary corrective. Prior to the Civil War, states and localities were the primary regu- lators of immigration.3 After the outlawing of slavery, however, the federal government became the dominant, if not exclusive, locus of immigration power, and remained so for the subsequent 125 years. In Chy Lung v. Freeman, an 1875 case, the Supreme Court established the notion of federal exclusivity in the field of immigration, striking down a California scheme that permitted state commissioners, at their discretion, to exact a bond for certain arriving immigrants.4 This type of subfederal immigration policy—state and local attempts to expel undocumented immigrants and exercise core immigration functions— is precisely the system that has developed today, with several states and localities enacting immigration enforcement ordinances and laws designed to discover and discourage the presence of undocumented persons. We term this recent resurgence of subfederal legislative activity “the new immigration federalism.” To justify these contemporary subfederal policies, states and local officials complain that the federal government has forsaken its consti- tutional and statutory responsibility to control unauthorized migra- tion. In this view, states and localities are left with no choice but to step into the void. For example, in signing Arizona’s E-Verify law, then-Governor Janet Napolitano declared: “Immigration is a federal responsibility, but I signed [the law] because it is now abundantly clear that Congress finds itself incapable of coping with the 1 In this paper, we will mostly refer to the class of persons present in the United States without lawful status as unauthorized or undocumented immigrants, except when inten- tionally referring to the statements or actions of those who use the terms “illegal aliens” or “illegal immigrants.” Any reference to these persons is intended to refer to those who either entered without inspection, or are otherwise out of status and unlawfully present. 2 See infra Part II.A. 3 See generally Gerald L. Neuman, The Lost Century of American Immigration Law (1776–1875), COLUM. L. REV. 1833 (1993). 4 92 U.S. 275, 277 (1875). \\jciprod01\productn\N\NYU\88-6\NYU603.txt unknown Seq: 4 25-NOV-13 12:34 December 2013] IMMIGRATION FEDERALISM 2077 comprehensive immigration reforms our country needs.”5 This narra- tive of federal failure has become so ingrained that in his Arizona v.