American Immigration Microfederalism: Sanctuaries, Restrictionist Jurisdictions, and Administrative Conflict

Abstract

This article explains the rise of microfederalism in migration and integration policy in the United States. Power over immigration is traditionally assigned to the federal government, but States and localities play central roles in providing services to unauthorized migrants due to gaps in congressional policy. Microfederal jurisdictions have responded pragmatically, according to their different policy preferences. Restrictionist jurisdictions seek to participate formally in federal enforcement, supplement enforcement with their independent measures, or by litigation realign federal enforcement priorities to match their own. Sanctuary jurisdictions employ affirmative and defensive policies to integrate migrants and shield unauthorized migrants' data against federal discovery.

Although policy competition and preference maximization favor non-interference with restrictionist and sanctuary microfederal policies, the Obama administration challenged restrictionist jurisdictions' policies by federal preemption litigation. Similarly, the Trump administration has asserted broad claims of federal supremacy and will seek federal preemption of sanctuary jurisdictions' integrative projects by resorting to broad claims of federal power at odds with local experimentation.

An earlier draft of this paper was presented at the conference "Looking Beyond the Crises: Impact of Mass Migration on Local, Regional, National, and EU Governance" organized by the Institute of Public Administration and held from 11-14 May 2017 at the Inter-University Center in Dubrovnik, Croatia.

Keywords: immigration, federalism, microfederalism, preemption, restriction jurisdiction, sanctuary jurisdiction