States Take the Immigration Initiative

It is an article of faith in U.S. constitutional law and political discourse that immigration regulation is the exclusive responsibility of the federal government. As the Supreme Court has intoned, when it comes to immigration, the United States speaks with one voice.

But state and local practice today belies this assumption. In 2007 alone, state legislatures across the United States considered over 1,000 pieces of immigration-related legislation. This year promises similar levels of attention, and the measures under consideration in the 50 states run the gamut.

The media have focused most of their attention on state efforts to crack down on undocumented immigration. All eyes are on Arizona, where a new law that would deny business licenses to employers who are caught hiring unlawful workers has been upheld in federal court. Such efforts to pressure employers have been among the most popular, as have measures that would enlist state and local police in immigration enforcement. But lawmakers also have considered anti-human trafficking laws and victim protection programs, proposals to extend in-state college tuition to the unauthorized, and measures to devote resources to translation and interpretation services, as well as naturalization drives and English-language education.

Local governments have staked out positions, too. Now infamous, the town of Hazleton, Pennsylvania, has passed an ordinance that would penalize employers and fine landlords who contract with the unauthorized—measures struck down after a lengthy trial in federal court. By contrast, in New Haven, Connecticut and San Francisco, California, immigrants regardless of status are eligible for municipal identification cards. New York City and other major urban centers maintain policies that restrict the authority of city officials, including police, to inquire into immigration status.

In other words, immigration regulation in the United States is literally and metaphorically all over the map.

But rather than condemn this trend as a usurpation of federal authority, or an unmanageable patchwork, we should take three lessons from it.

First, immigration implicates the economic and cultural interests of states, as well as the fiscal bottom line of their institutions, such as hospitals and schools. State and local governments and voters should have a stake in determining how to respond. The Supreme Court has recognized as much. In a 1976 case upholding a California employer sanctions scheme, the Court observed that not every state policy related to immigrants is preempted, particularly when that policy involves traditional state police powers, such as regulating the employment relationship.

Second, the federal government depends on this state and local activity. The federal government confronts two competing concerns when managing migration. On the one hand, the labor market demands a large immigrant workforce. On the other, people resist demographic change and tend not to support the expansion of legal channels for immigration, particularly of the low-skilled variety. The emergence in the last decade of an undocumented immigrant population twelve million strong underscores the difficulty of this balancing act. Congress’s inability to pass comprehensive immigration reform in the last two years demonstrates how difficult it can be to achieve a national immigration consensus. States and localities help diffuse this dilemma by providing diverse solutions to it.

To be sure, the policies adopted by sub-federal entities may sometimes be in tension with the federal government’s approach. Arizona’s law arguably sets different enforcement priorities than the federal government’s, and policies extending in-state tuition to unauthorized immigrants cleverly circumvent a federal law that prohibits arrangements of this type. But the diversity of state and local practice shows that different parts of the country will come to terms with immigration differently. States’ particular immigration histories, the composition of local populations, and the political party preferences of a given jurisdiction shape these diverse responses. This patchwork, in turn, channels public sentiment on a contentious issue and sends signals indicating where immigrants are most welcome and therefore most likely to be integrated successfully.

Third, lawmakers at all levels of government should seize the opportunity for cooperation. We should be thinking about where and how states and localities can collaborate with the federal government, not only in enforcement, but also on the subject of immigrant integration. Enlisting states to assist in enforcement could improve the reliability and efficiency of the system in a way that enhances public confidence in government and therefore generates the political will necessary for comprehensive reform. The federal government also would be wise to devote its resources to supporting the state and local institutions that do the lion’s share of integration work. The federal government could play a coordinating function, disseminating information about best practices, while enabling states to experiment with integration strategies.

Appreciating these points does not mean ignoring the need for strong federal leadership. A transparent and administrable system demands a single set of federal rules establishing who has the right to enter the United States and for how long. Only Congress can regularize the status of the twelve million unlawful immigrants and prevent a similar population from re-emerging. What is more, states and localities are not free to violate the due process, privacy, or equal protection rights of any individual in their zeal to abate undocumented immigration. And, in some instances, Congress has affirmatively prohibited state efforts. A federal law passed in 1986, for example, clearly prohibits states from imposing fines on employers who hire unlawful workers. At the same time, a loophole in that law may authorize the licensing sanctions enacted by states such as Arizona.

Various lawsuits testing whether states and localities have exceeded their authority are winding their way through the courts and may well end up at the Supreme Court soon. In the meantime, the state-based experiment continues. In Arizona, we are poised to learn something about state involvement in immigration enforcement. Can states supplement federal efforts without disrupting federal priorities, stoking ethnic tensions, or inducing employers to discriminate against Latino job applicants? What are the costs to the business community and to economic growth of laws that dramatically increase the threat of sanctions?

It may well be that once Arizona actually experiences the costs of heightened enforcement—if small businesses close their doors and large businesses relocate to neighboring states—lawmakers there and elsewhere will reconsider their reforms. But the challenge of integrating unprecedented numbers of immigrants into American society will remain, as will the pressure lawmakers feel from their constituents. These challenges ultimately cannot be met without the efforts of all levels of government in the United States.

Cristina M. Rodríguez is Associate Professor of Law at New York University School of Law.