Discriminatory Cooperative Federalism

65 Pages Posted: 18 Sep 2020 Last revised: 24 Sep 2020

Date Written: June 1, 2020


Under the Equal Protection Clause, states can’t (with certain exceptions) discriminate against noncitizens. But Congress can. Sometimes, Congress tries to share this power to discriminate with states. This article looks at cases in which Congress supports state discrimination using cooperative federalism. (The phrase “cooperative federalism” refers to a form of lawmaking in which Congress induces or allows states to play a role in federally-created regulatory schemes.)

For example, multiple provisions of the Welfare Reform Act of 1996 aim to encourage states to deny public benefits to noncitizens. The Welfare Reform Act attempts to work around the Equal Protection Clause by sharing with the states Congress’s plenary power to treat noncitizens differently. It thus represents a form of cooperative federalism whose goal is discrimination.

Cooperative-federalism schemes require the involvement of two actors, federal and subfederal, each subject to their own legal constraints. In the immigration context, discriminatory cooperative federalism is vulnerable to challenges aimed at the federal actions (like claims that Congress has impermissibly delegated its power) and challenges aimed at the states’ actions (like equal-protection challenges). Distinguishing the federal and state components of these challenges significantly clarifies the analytical picture, and, for advocates, the plan of attack.

Suggested Citation

Ayers, Ava (formerly Andrew), Discriminatory Cooperative Federalism (June 1, 2020). 65 Villanova L. Rev. 1 (2020), Albany Law School Research Paper No. 5 for 2020-2021, Available at SSRN: https://ssrn.com/abstract=3632435

Ava (formerly Andrew) Ayers (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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