Immigration Structuralism: A Return to Form

Duke Journal of Constitutional Law & Public Policy, Vol. 8:1, 2013

71 Pages Posted: 27 Jun 2013 Last revised: 4 Apr 2014

Date Written: August 1, 2013


At the heart of the subfederal immigration revolution are two core questions. The first is what to do about our broken immigration system, especially regarding an estimated 11 million individuals unlawfully present. For now, at least, the only common denominator is that something should be done. This unsatisfying consensus invites the revolution’s second core question: which institution of government, relative to others, has the power to do what. Although Congress has the lawmaking power, it has yet to meet the demand for reform. Meanwhile, the federal executive has proven unable or unwilling to effectively enforce the law in effect. Frustrated, and by default, states and localities increasingly have sought to “cooperate” in immigration enforcement through self-help measures. The federal administration, however, has generally rebuked these subfederal initiatives and has sought to enjoin them on preemption grounds. Our unelected judiciary thus has been tasked to sort it out, twice by the Supreme Court in as many years.

This symposium article advances a theory of “immigration structuralism” directed to the question of relative power in the ongoing subfederal immigration debate. Most other approaches to this question have rightly trained on federalism. Yet missing, until now, is a complimenting account for separation-of-powers. Immigration structuralism fills that void, offering an interdimensional approach to preemption. Sensitivity to separation-of-powers is especially critical when the federal executive claims — as it did with mixed results in Arizona v. United States — that its enforcement policies have preemptive effect. As highlighted herein, however, approaches to immigration preemption that sideline the distinction between executive policies and congressional statutes incentivize Congress to abdicate lawmaking to the executive, the executive to usurp Congress’s lawmaking role, or both. In turn, these aberrations in the lawmaking process undermine the political and procedural protections guaranteed to the states in the Constitution. My suggested approach, by contrast, draws a fundamental distinction between legislative and nonbinding executive action, such that only the former may trump subfederal law. As will be seen, this approach better safeguards both federalism and separation-of-powers.

To be sure, answers to the constitutional question of “which” have practical implications for the political outcomes of “what.” As I hope to convince, however, a consequentialist approach to the question of what to do about immigration should not distort or substitute for the separate question of which institution has the power to do it.

Keywords: Immigration, Preemption, S.B. 1070, separation of powers, federalism, immigration federalism, structuralism, DACA, deferred action, prosecutorial discretion, Crane v. Nepolitano

Suggested Citation

Rubenstein, David S., Immigration Structuralism: A Return to Form (August 1, 2013). Duke Journal of Constitutional Law & Public Policy, Vol. 8:1, 2013 , Available at SSRN:

David S. Rubenstein (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
785-670-1682 (Phone)

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