Forced Federalism: States as Laboratories of Immigration Reform

Keith Cunningham-Parmeter

Willamette University - College of Law


Hastings Law Journal, Vol. 62, p. 1673, 2011

This Article questions the experimental value of state immigration laws. Analyzing the Supreme Court’s major decisions in this area, including Chamber of Commerce v. Whiting, the Article explains why state immigration laws fail to satisfy two necessary conditions of effective experimentation: internalization and replication. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms — far from the type of diverse testing associated with true innovation.

Today’s state immigration laws also fail to internalize costs — another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states but are felt by the nation as a whole.

Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.

Number of Pages in PDF File: 56

Keywords: immigration, alien, citizen, worker, Arizona, policy, deportation, harassment, racial profiling, courts, alien, citizen, states-as-laboratories, Brandies, immigration reform

JEL Classification: J18, J61, J71, K31, K42

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Date posted: January 19, 2012 ; Last revised: December 13, 2016

Suggested Citation

Cunningham-Parmeter, Keith, Forced Federalism: States as Laboratories of Immigration Reform (2011). Hastings Law Journal, Vol. 62, p. 1673, 2011. Available at SSRN: https://ssrn.com/abstract=1987176

Contact Information

Keith Cunningham-Parmeter (Contact Author)
Willamette University - College of Law ( email )
245 Winter St. SE
Salem, OR 97301
United States
(503) 370-6609 (Phone)
HOME PAGE: http://www.willamette.edu/wucl/faculty/profiles/cunningham/index.php
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