The Transformation of Immigration Federalism

Jennifer M. Chacón

University of California, Irvine School of Law; University of Oxford - Border Criminologies


William & Mary Bill of Rights Journal, Vol. 21, No. 2, 2012
UC Irvine School of Law Research Paper No. 2013-92

Over the past two decades, sub-federal participation has become a significant feature of the immigration enforcement landscape. Much of this participation is not sanctioned by the letter of federal immigration law, and recently, the federal government’s immigration enforcement policies have moved in a direction aimed at bringing sub-federal enforcement efforts more closely into alignment with the letter of that law. The Court’s decision in Arizona v. United States is insufficiently attentive both to the letter of federal law and to ongoing federal practice. And notably, in Arizona, as in Chamber of Commerce v. Whiting, the Court discounts the antidiscrimination goals of federal immigration law. This article elaborates upon these arguments, and concludes that, in the wake of Arizona v. United States, state and local law enforcement will continue to play a leading role in shaping immigration enforcement and the immigrant experience in the United States, notwithstanding the Court’s formal endorsement of federal primacy in this realm. Part I of this Article outlines the Court’s immigration federalism jurisprudence, focusing on its recent decisions. Part II explores the reasons that the Court’s formal adherence to traditional notions of immigration federalism will fail to translate into federal primacy in practice. Succinctly put, traditional judicial articulations of immigration federalism do not account for the sub-federal immigration enforcement discretion that has accumulated over the past two decades. Part III of this Article unpacks the Court’s decision in United States v. Arizona to explain why the seemingly traditional approach to federalism espoused by the Court actually represents a substantial reformulation of immigration federalism principles on the ground.

Number of Pages in PDF File: 44

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Date posted: February 5, 2013 ; Last revised: June 17, 2014

Suggested Citation

Chacón, Jennifer M., The Transformation of Immigration Federalism (2012). William & Mary Bill of Rights Journal, Vol. 21, No. 2, 2012; UC Irvine School of Law Research Paper No. 2013-92. Available at SSRN: http://ssrn.com/abstract=2211664

Contact Information

Jennifer M. Chacón (Contact Author)
University of California, Irvine School of Law ( email )
535A Administration
Irvine, CA 92697-1000
United States
530-754-5700 (Phone)
University of Oxford - Border Criminologies ( email )
Manor Road Building
Manor Rd
Oxford, OX1 3UQ
United Kingdom

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