Federalism, International Human Rights, and Immigration Exceptionalism

Abstract

This essay addresses three related topics. The first is immigration federalism: the role of states and localities in immigration-related matters. While the prevailing view favors federal exclusivity, the state and local role has expanded in recent years. This expansion draws support from the expansion of state activity in foreign affairs. The argument is that if federal exclusivity in foreign affairs is no longer justified, then federal exclusivity in immigration-related matters also should end. I find this argument unconvincing and explain why. Second, I caution against overreliance on international human rights law in immigration matters. International human rights norms are sometimes poorly suited to express fundamental and distinctively American concepts of immigration and citizenship in the United States. Also, the focus on international human rights accentuates the tendency to focus on the interests and rights of noncitizens, without also analyzing how citizens are also affected. Third, I address "immigration exceptionalism," or the view that immigration should be exempt from common constraints, like constitutional judicial review. Many commentators criticize immigration exceptionalism as part of their argument for constitutional judicial review in immigration cases. Does this contradict their support of federal exclusivity, which also may constitute immigration exceptionalism? My answer is no. I explain how it is consistent to argue both for (a) constitutional judicial review in immigration-related cases and an end to immigration exceptionalism for that purpose, and (b) severe limits on the state and local role in favor of federal exclusivity in immigration-related matters, even if this also reflects immigration exceptionalism.