The New Immigration Federalism

Abstract

The Supreme Court’s recent rulings in Arizona v. United States (2012) and Chamber of Commerce v. Whiting (2011) mark a watershed in immigration law and doctrine. Because the Supreme Court held that state and local indirect enforcement measures are no longer permissible, some scholars have argued that this signals the end of state and local engagement in immigration regulation. I believe, to the contrary, that Arizona and Whiting portend a new direction for immigration federalism, with increased emphasis on states’ and localities’ opportunities to promulgate immigrant-inclusionary measures. This “new immigration federalism” encompasses dynamic and interactive multi-governmental rulemaking pertaining to immigrants and immigration, including rulemaking intended to foster immigrant inclusion. By analyzing recent initiatives for immigration law reform, including Senate Bill 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act,” the Obama Administration’s Deferred Action for Childhood Arrivals Program, the “Illegal Immigrant Relief Act” lawsuits in Pennsylvania and Texas, the non-cooperation (“sanctuary”) ordinances passed in California and Illinois, numerous state “DREAM Act” initiatives for immigration youth, current legal challenges to immigration enforcement statutes in Alabama, Arizona, Utah, Indiana, Georgia, and South Carolina, and numerous immigrant-inclusionary measures enacted by state legislatures since the Court’s Arizona opinion, this Article proposes that such developments are best understood within the coherent framework of the new immigration federalism. This new immigration federalism, grounded in immigrant-inclusionary rulemaking, has the potential to inform, complement, and occasionally contradict federal efforts at comprehensive immigration reform.