Taking Immigration Federalism Seriously

Abstract

Probably no principle in immigration law is more firmly established, or of greater antiquity, than the plenary power of the federal government to regulate immigration. Also canonical is the corollary notion, analogous to the dormant power doctrine in Commerce Clause jurisprudence, that this federal power is indivisible and therefore that the states may not exercise any part of it without an express or implied delegation from Washington. Despite the plenary power doctrine's canonicity, it has been assailed over the years by many academics (including me) and defended, I think, by none.

An interesting feature of these critiques of the plenary power doctrine is that its critics (with the notable exception of Peter Spiro) seem eager to embrace its corollary - the principle that federal authority over immigration preempts the states from playing any independent role in the development and administration of immigration law and policy. This conjunction of positions, which might otherwise seem illogical or at least awkward, is probably best explained by ideology and politics. As I have explained elsewhere, the immigration law professoriate occupies a position at the extreme left in the national debate over immigration.

On the evidence from the post-1996 period, however, it is not at all clear that states unconstrained by the plenary power doctrine and its preemption corollary would treat legal immigrants more harshly than the federal government would - or than reasonable (i.e., non-xenophobic) voters might think wise or fair. Some states (or more likely, localities) might do so, but the the largest immigrant-receiving states are in fact consistently more generous to immigrants, even including undocumented ones, than are federal policymakers.

But even if this solicitude were less robust than it is, a sensible immigration policy should allocate regulatory power over immigration and immigrants between the federal government and the states based on principles more general and politically acceptable than one that simply favors whichever power allocation one or another commentator thinks will gain immigrants the most social services and welfare benefits.

Using a functional analysis, I argue that the legitimate goals of federal immigration policy might be better served if Congress authorized state authority in certain policy areas - employment-based admissions, integration with state and local criminal justice systems, and employer sanctions. I also argue, however, that state and local laws that penalize landlords and other vendors to undocumented immigrants of services are preempted by federal law.