State and Local Regulation of Immigration: The Need for a Bilateral (Reciprocal) Ratchet

Abstract

The Spanish version of this paper can be found at http://ssrn.com/abstract=2271258.This essay proposes a broader approach regarding pro-immigrant subfederal regulation in order to level the current legislative playing field. This essay examines the three 2011 Supreme Court actions on immigration in Whiting, Martinez and Hazleton. Under the current preemption approach, supported by many who reasonably fear unharnessed subfederal discrimination against immigrants, Congress has granted states the right to act in this field exclusively in a pro-enforcement direction. Rather than allow only pro-enforcement proposals, a more flexible approach in examining how to view preemption should be used to grant states the ability to generate more adaptable, varied approaches to the issue of unauthorized immigration.