October 22, 2015

The New Immigration Federalism

by Pratheepan Gulasekaram and S. Karthick Ramakrishnan. Gulasekaram is an Associate Professor of Law at Santa Clara Law, and Ramakrishnan is a Professor of Public Policy and Political Science and Association Dean of the School of Public Policy at the University of California, Riverside.

The years after 9/11 have witnessed a period of great ferment and transformation with respect to immigration and federalism. This era, characterized by an extended federal legislative gridlock on immigration, has been one of unprecedented levels of state and local policymaking on the subject. The past several years have witnessed a flurry of restrictionist policies, like Arizona’s SB 1070 and its copycats, employer verification statutes, and local agreements with the federal government to help enforce immigration laws. On the integrationist side, states and localities have implemented policies to resist their complicity in federal immigration enforcement, provide education benefits, and allow access to a variety of social services.

What are the causes of this development, in terms of background factors and more proximate causes? And, what are the consequences of these new developments in immigration federalism, particularly with respect to our understanding of the role of states and localities in our constitutional order? Using empirical data and a multi-disciplinary approach, our book answers these central questions and provides several key insights for the future development of state and local policy and federal immigration reform.

We first situate the current flurry of subfederal legislation in the larger historical context of immigration federalism in the United States, showing how Congress and the Supreme Court have played key roles in particular historical moments, to either permit or limit state involvement in regulating immigration. Indeed, we make the case that this contemporary period represents an emerging phase in the still-evolving “third era” of immigration federalism that began in 1965, an era that is distinct from the first century of immigration law that was state-centric, and the second century of immigration law where the federal government became dominant. In the past fifty years, Congress waded explicitly into defining what states can do with respect to regulating the welfare and livelihood of immigrants, and states attempted significant controls over the undocumented population. We end our historical overview with the period immediately preceding September 11, 2001, discussing in detail California’s Proposition 187 in 1994, the predecessor to the several state and local restrictive efforts that dominated headlines over the past ten years.

Having provided this context, we then explain the various types of laws that states and localities have passed during this new period of immigration federalism. In Chapter 3, we provide a description and classification of key types of restrictionist laws at the state and local level that were dominant from 2004 through 2012, such as enforcement laws, employer sanctions provisions, and rental ordinances aimed at undocumented immigrants. We then examine the causes for this spike in restrictionist legislation, and ask why it was occurring in some places but not in others. Using original empirical analysis, we reject the conventional narrative about these restrictionist laws, which popularly held that a combination of demographic pressures from new patterns of unauthorized migration, combined with federal inaction, created irresistible pressure for states and localities to act. Our empirical analysis not only refutes this generally-accepted (but mistaken) explanation, but in doing so reveals the most salient factor explaining the proliferation of restrictionist laws across selected jurisdictions:  political partisanship.  Put simply, we show that demography is not destiny, but politics may be.

Suggesting that partisanship matters, however, doesn’t explain how partisanship matters. Chapter 4 offers an evidence-based account – which we term the Polarized Change Model – to show how partisanship was used in a coordinated strategy to proliferate restrictions across politically receptive jurisdictions. Indeed, our qualitative empirical work shows that this strategy was used in conjunction with the intentional stalling, at key moments, of the federal immigration reform process so that state-level enactments would have more legal space to flourish. Critically, our Polarized Change Model highlights the vital influence of key political actors – whom we term “issue entrepreneurs” – who were able to harness the power of partisanship, play this two-level game between the federal and state governments, and network legislative activity across multiple state-level governments.

What about integrationist state and local laws that provide benefits and social services to undocumented persons, and attempt to limit federal enforcement efforts? In Chapter 5, we seek to situate the post-2012 integrationist trend within the Polarized Change Model of immigration federalism described earlier. Consistent with that model, the shift toward more integrationist laws is also heavily influenced by a political process, with Democratic-leaning cities and states much more likely to pass such legislation. While the fundamental demographic realities of immigration settlement did not change appreciably after 2012, the political landscape certainly did, as presidential candidate Mitt Romney faced steep losses in support among immigrant voters after his embrace of state and local immigration restrictionism. 2012 was also a pivotal year in two other respects: the Obama Administration implemented its Deferred Action for Childhood Arrivals program, and the Supreme Court rejected several parts of Arizona’s notorious enforcement scheme, SB 1070. Beyond highlighting these important events, we also find that immigrant advocacy groups have adopted the kind of networked strategy of policy proliferation used by restrictioinist issue entrepreneurs. In an important contrast, however, the networked actors working on state-level integration have not worked against comprehensive immigration reform at the federal level, even when it has contained many enforcement provisions that they find unpalatable.

In Chapter 6, we pivot from answering the “what” and “why” questions of this new immigration federalism, to more fully considering its legal implications. We provide a framework, grounded in equal protection analysis, to help differentiate “enforcement” federalism from “integration” federalism. Then, we show how our narrative of policy proliferation -- as the product of a coordinated political activity -- challenges assumptions relied on by several scholars regarding the role of demographic change and the functionality of state and local immigration law. Finally, we argue that our politicized account undermines the traditional assumptions of federalism theory, which rely on stylized and outdated versions of sovereignty and idealized assumptions regarding the utility of state and local experimentation.

We close the book by looking ahead to the growing influence of subfederal immigration policymaking on the everyday lives of immigrants, and its likely effect on national policy. We note that the recent surge in state and local policies – both restrictionist and integrationist – has changed the national discourse on immigration reform, influencing the substantive direction of any future legislation, and significantly affecting separation of powers dynamics between the political branches of the federal government. More generally, we conclude that even if there are successful attempts at legislative reform at the national level, state and localities will continue to play a significant role in regulating the lives of immigrant residents in the United States. The new immigration federalism was not just a flash in the pan; it has left an indelible mark on American law and politics, and will continue to shape immigration policy and federalism dynamics for years to come.