The Constitutional Dimension of Immigration Federalism
51 Pages Posted: 7 Mar 2007 Last revised: 27 May 2010
Although the federal government is traditionally understood to enjoy exclusive authority over immigration, states and localities are increasingly asserting a role in this field. This development has sparked vigorous debate on the propriety of such involvement, but the debate is predicated on a misunderstanding of the nature of federal exclusivity. Challenging the conventional wisdom that the Constitution precludes a meaningful role for state and local involvement in immigrationa structural preemption argumentthis Article argues that the Constitution allows immigration authority to be shared among levels of government. After establishing the correctness of this view of immigration authority, this Article argues that the constitutionality of state and local involvement should be assessed through the lens of traditional federalism values. A federalism lens does not necessarily validate any particular state and local regulation, but in lieu of the blunt tool of structural preemption, it is a far superior means for determining the proper allocation of immigration authority among levels of government, leading to a more nuanced assessment of the interests at stake.
Keywords: immigration, federalism
JEL Classification: K10
Suggested Citation: Suggested Citation