The President and Immigration Federalism

Abstract

This Article lays out a systematic conceptual framework to better understand the relationship between federal executive action and state-level legislation. Prior scholarship in immigration law has focused on structural power questions between the federal government — as a unitary entity — and the states, while newer scholarship has examined separation of powers concerns between the President and Congress. This Article builds on both of these traditions, focusing on the intersectional relationship between the federal executive and subfederal lawmaking, which we argue is an important yet overlooked dynamic in the resurgence of immigration federalism. First, we explain the relationship between Presidential action and state reaction in the immigration field, deriving a typology from historical examples of curtailing, coopting, and catalyzing state action. Next, we use that tripartite framework to explicate the ways that the Obama presidency has deepened presidential power through immigration federalism, sometimes in unintentional ways. As an example of the latter, we provide a novel explanation for the rise of state driver license laws for unauthorized immigrants as an unintended consequence of presidential action. Our analysis concludes that the President wields significant potential to bring coherency to immigration enforcement and instantiate a de facto national policy, using states to entrench his vision. In some circumstances, however, states may also resist Presidential action, thereby functioning as Congress’ proxy in separation of powers battles over immigration policy.