States of Confusion: The Rise of State and Local Power over Immigration
63 Pages Posted: 12 Sep 2008 Last revised: 8 Oct 2008
Federal immigration law has evolved from a stepchild of foreign policy to a national legislative and regulatory scheme that intersects with the triumvirate of state power: criminal law, employment law, and welfare. Shifting the locus of immigration law out of the category of foreign affairs and into these domestic spheres casts immigration law into a world infused already with state and local regulation. This Article explores the way in which re-imagining immigration law as a domestic affair is bound to expand subnational control over immigration. Once immigration law is re-imagined as interwoven with these domestic areas of law, state and local governments will seek to regulate it concurrently with the federal government. Domesticating immigration law will as inevitably impact the judges and legislators who pass upon the lawfulness of that subnational involvement. When courts perceive the subnational rule as a regulation of foreign policy, the space permitted for local regulation narrows. When, however, courts view the subnational government as acting within its traditional spheres of power, the local rule stands a much greater chance of surviving.
The domestication of immigration law is especially apparent in state and local efforts to address the criminalization of immigration law, or "crimmigration law." The rise of crimmigration law has transformed immigration law from something the federal government is uniquely positioned to control - foreign policy - to something states are experts in - law enforcement. This Article employs history, law and policy to critique the growing trend toward subnational reliance on criminal law to control immigration. It advocates a searching evaluation of the costs of subnational laws that single out noncitizens for criminal sanctions.
Keywords: immigration, criminal, state, local, federalism, foreign policy, foreign affairs, employment law, welfare, sovereignty, preemption, equal protection, law enforcement, police
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