The Constitutional Dimension of Immigration Federalism

51 Pages Posted: 7 Mar 2007 Last revised: 27 May 2010

Abstract

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 immigration—a structural preemption argument—this 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

Huntington, Clare, The Constitutional Dimension of Immigration Federalism. U of Colorado Law Legal Studies Research Paper No. 07-06; Vanderbilt Law Review, Vol. 61, 2008. Available at SSRN: https://ssrn.com/abstract=968716

Clare Huntington (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
212-636-6832 (Phone)

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