Enforcement, Integration, and the Future of Immigration Federalism

Abstract

The federal government has a monopoly over the terms of immigration law, and it superintends the nation's singular immigration enforcement bureaucracy. But our federalism nonetheless provides a vital playing field for sharp debates over the status of immigrants in American life. The forms of state and local involvement in immigration policy are varied, but they fall into two basic categories of mutually dependent and re-enforcing policies: enforcement federalism and integration federalism. Whereas enforcement federalism concerns the extent to which localities should assist or resist federal removal policies, integration federalism encompasses measures designed to assist immigrants, regardless of status, to plant roots and acculturate to life in the United States. Both forms of immigration federalism take shape through a wide variety of intergovernmental relations, not only between the federal government on the one hand and states and localities on the other, but also between states and the cities within them — an increasingly important dimension of immigration federalism today. These relations have important legal characteristics, and constitutional and statutory law bring them into being and mediate them. But the nature of any given intergovernmental dynamic will be shaped just as much by a combination of ideology and institutional imperatives. These elements can either unite the center and the periphery in common cause or produce the sort of conflict that has made immigration federalism a high-profile issue for decades. Given the density of the intergovernmental dynamics that shape the country's immigration policy, developing a comprehensive strategy for immigration federalism requires more than a predilection toward or away from centralization of government authority. It requires a clear view on the appropriate metes and bounds of immigration enforcement, as well as a set of beliefs about the proper place in the social order of immigrants with different legal statuses. While this essay remains largely (though not entirely) agnostic on these questions, it offers four basic principles to frame any future federalism agenda. First, when it comes to enforcement federalism, the federal government ought to acknowledge the reasons that localities might resist federal enforcement efforts, at least as a matter of politics, and if only to ensure that federal policy is subjected to accountability checks by competing, external pressures. Second, whatever the value of resistance to enforcement, a federalism agenda should include efforts by all levels of government to identify a manageable equilibrium that reconciles the federal government's constitutional and statutory responsibilities for maintaining an enforcement regime with the local politics of immigration and the lived realities of immigrant communities. Third, when it comes to integration federalism, the problem of illegal immigration must be solved, and only the federal government can do so decisively. Federalism can only mediate the political conflict over status and help set the terms for its ultimate resolution. And yet, the structural reasons that have given rise to integration federalism should re-enforce the country's commitment to locally driven integration policy, supported by a national-level commitment to information sharing, coordination, and resource support. Finally, because both enforcement and integration policy require systemic flexibility, it is important not to confuse arguments on the merits of immigration policy with structural claims. In other words, scholars, advocates, or policymakers should exercise humility and circumspection when developing conversation-stopping claims that a certain intergovernmental relation is required by law, especially in a context as charged as immigration policy.