Who is Responsible for U.S. immigration policy?

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Jennifer Chacón is a professor of law at the University of California, Irvine School of Law. She does research in the fields of immigration law, constitutional law, and criminal law and procedure.

Who controls the nation’s immigration laws? Although the question seems straightforward, the historical picture is mixed, and the text of the U.S. Constitution does not point clearly to the answer. While the Constitution’s text and the various Supreme Court cases interpreting this text suggest that the federal govern­ment has the exclusive power to enact and enforce the nation’s immigration laws, state and local authorities still play an important role in the regulation of immigration because they shape the conditions of daily life for immigrants in their jurisdictions.

Federal Immigration Power

Article I, Section 8, clause 4 of the Con­stitution entrusts the federal legislative branch with the power to “establish an uniform Rule of Naturalization.” This clear textual command for uniformity establishes that the federal government, specifically Congress, is responsible for crafting the laws that determine how and when noncitizens can become nat­uralized citizens of the United States. But control over naturalization does not necessarily require full control over immigration. And indeed, for the first century of the United States’ existence, many states enacted laws regulating and controlling immigration into their own borders. Various states passed laws aimed at preventing a variety of populations from entering the borders of their states, including individuals with criminal records, people reliant on public assistance, slaves, and free blacks.

It was not until the late 19th centu­ry that Congress began to actively reg­ulate immigration, in particular, with measures designed to restrict Chinese immigration. By this time, the Supreme Court had begun to articulate clear limits on state immigration powers. In 1849, with the Passenger Cases, the Supreme Court struck down efforts by New York and Massachusetts to impose a head tax on incoming immigrants. Four justices concluded that such taxes usurped congressional power to regu­late commerce under Article I, Section 8, clause 3 of the Constitution. A unan­imous court applied the same rationale in 1876, striking down a New York state statute taxing immigrants on incoming vessels in Henderson v. Mayor of New York. A few years later, in 1884, with a decision in the Head Money Cases, the Court for the first time upheld a federal regulation of immigration, also on Com­merce Clause grounds.

From that time on, the Court upheld federal immigration regula­tions against constitutional challenges, although the underlying rationale shift­ed. With the Chinese Exclusion Case in 1889, the Court began issuing a series of decisions in which it treated con­gressional power over the regulation of immigration as a virtually unreview­able, plenary power. The Court upheld congressional immigration laws and executive enforcement of those laws against a series of challenges, in spite of their patently discriminatory nature and lack of due process guarantees for non­citizens. The Court repeatedly suggest­ed that this federal power flowed from the federal government’s prerogative to control foreign affairs.

From the late 19th century through the present day, the Supreme Court has upheld almost every federal immigra­tion regulation against constitutional challenge, citing Congress’s plenary power in this area. As Justice Kennedy wrote in the 2012 decision in Arizona v. United States:

The Government of the Unit­ed States has broad, undoubted power over the subject of immi­gration and the status of aliens. … This authority rests, in part, on the National Government’s con­stitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations….

State and Local Immigration Regulation

The Passenger Cases established that states cannot tax immigrants without running afoul of the Commerce Clause. But what about laws that regulate the lives of immigrants in other ways? The Supreme Court has explored limits of the power of state and local gov­ernments in a series of immigration-related cases decided over the past century. One of the earliest and clear­est decisions in this regard appeared in 1941 with the case of Hines v. Davidowitz, which involved a challenge to a Pennsylvania law that would have required noncitizens to register with the state government and car­ry a state-issued registration card. At the time the law was passed, there was no comparable federal regulation, although the federal government soon afterward did pass a comprehensive, national law governing the registration requirements for noncitizens in the United States. Even after the passage of the federal law, the Pennsylvania law did not conflict with the federal law; it merely would have required noncit­izens to comply with Pennsylvania’s registration provisions as well as those of the federal government. The state of Pennsylvania argued that because their regulation could co-exist with the fed­eral scheme, it was constitutional. The Supreme Court disagreed. Reasoning that the power to regulate noncitizens goes to the heart of the federal govern­ment’s power over foreign affairs, the Court struck down Pennsylvania’s alien registration scheme. The Court wrote:

[W]here the federal government, in the exercise of its superior authority in this field [of immi­gration], has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or comple­ment, the federal law, or enforce additional or auxiliary regulation.

The lesson here was clear: the reg­ulation of immigration was a matter for the federal government. Any efforts to regulate immigrants where Congress had regulated—even complementary efforts—were unconstitutional.

In later cases, the Court made clear that there is room for state and local involvement in the regulation of the lives of immigrants, albeit not necessar­ily in the regulation and enforcement of laws controlling the flow of immigration itself. In DeCanas v. Bica (1976), the question before the Court was whether a California law that imposed sanctions on employers who hired noncitizens unau­thorized to work in the United States infringed on federal immigration pow­ers. The Court rejected the challenge to the California law, concluding that, in the absence of a comprehensive federal scheme to regulate the employment of unauthorized workers, California’s law was not preempted by federal immigra­tion law. DeCanas acknowledged the power of states to regulate immigra­tion-related matters that fall under the states’ traditional police powers, provided the states’ laws do not conflict with federal immigration law.

Between 1976 and 2011, the Supreme Court did not take up the question of sub-federal regulations of immigration again. This did not mean, however, that states and localities were staying out of the business of regulat­ing immigrants. In 1994, a majority of California voters passed Proposition 187, an initiative designed to prevent noncitizens living in the state without legal authorization from accessing a variety of benefits, including state-fund­ed health care and education programs. A federal district court in California enjoined the Proposition in the case of LULAC v. Wilson (1995), concluding that the state had no authority to reg­ulate immigration in this way because this was a federal prerogative.

As the unauthorized immigrant population grew in the United States, and as Congress continued to stalemate on efforts to enact comprehensive fed­eral legislation to reform the nation’s immigration laws, some states and localities took more matters into their own hands. Monica Varsanyi traces the increase of legislation in her book Tak­ing Local Control: Immigration Poli­cy Activism in U.S. Cities and States (Stanford: 2010):

In 2005, according to the Immigra­tion Policy Project of the National Conference of State Legislators, state legislatures considered approximately 300 immigration and immigration-related bills and passed around 50. In 2006, 500 bills were considered, 84 of which became law. In 2007, 1,562 immi­gration and immigrant-related pieces of legislation were intro­duced and 240 became law. And…in 2009, approximately 1,500 laws and resolutions were considered in all 50 state legislatures, and 353 were enacted.

The laws in question included restrictionist provisions such as mea­sures designed to bar unauthorized noncitizens from housing and employ­ment, as well as integrationist measures increasing immigrant eligibility for state benefits such as health insurance and English language education. The spate of state and local regulations on this wide range of immigration-related issues prompted the Supreme Court to again attempt to delineate the power of sub-federal entities to regulate immi­gration in two recent cases. In both of these cases, the Court acknowledged that states can play some role in regu­lating the lives of immigrants, even as it reaffirmed federal primacy in the regu­lation of immigration.

The first case, which the Court ruled on in 2011, Chamber of Com­merce v. Whiting, involved a challenge to an Arizona state law, the Legal Arizo­na Workers Act (LAWA), which allows the superior courts of Arizona to sus­pend or revoke the business licens­es of employers who knowingly hire unauthorized noncitizen workers. The Chamber of Commerce of the United States and various business and civil rights organizations sued to prohibit the law on the grounds that it was express­ly preempted by federal immigration regulations. They cited the provisions of the Immigration Reform and Control Act of 1986 (IRCA), which created a fairly comprehensive federal statutory scheme requiring employers to main­tain records of employees’ work eligi­bility, penalizing employers who hire unauthorized workers, and protecting authorized workers from discriminato­ry hiring practices.

The Supreme Court disagreed. Instead, the Court noted that IRCA includes a clause that expressly allows for state regulation of the employ­ment of unauthorized workers through “licensing and similar laws.” The Court found that LAWA was a state licensing law expressly permitted by Congress in the text of IRCA. So while states cannot impose civil or criminal penal­ties on individuals or entities that hire immigrant workers lacking federal work authorization, they can use their licensing powers to address the same problem.

Federal, State, and Local Relationships

Amid all of this, the federal government has historically involved state and local officials in enforcement of the nation’s immigration laws, especially when pub­lic opposition to immigration grows. In the 1930s, during the height of the Great Depression, a number of city and state governments became actively involved in rounding up and removing Mexicans, and Mexican Americans, to Mexico.

In recent years, the federal government has increasingly sought to develop rela­tionships with state and local officials, sometimes against the will of officials in some jurisdictions. Some state and county governments have entered into voluntary agreements with the federal government, known as 287(g) agree­ments, which allow their agents to investigate the immigration status of individuals in their jurisdiction and to enforce immigration laws under the supervision of federal authorities. The federal government has also attempted to actively engage all state and local law enforcement in immigration polic­ing indirectly, through a program called Secure Communities. As described by Immigration and Customs Enforcement (ICE):

For decades, local jurisdictions have shared the fingerprints of individuals who are arrested or booked into custody with the FBI to see if they have a criminal record. Under Secure Communi­ties, the FBI automatically sends the fingerprints to DHS to check against its immigration databas­es. If these checks reveal that an individual is unlawfully present in the United States or otherwise removable due to a criminal con­viction, ICE takes enforcement action….

This program thus attempts to leverage the policing powers of states and localities to federal law enforce­ment ends. Some communities have attempted to resist participation in the Secure Communities program, raising questions about the federal govern­ment’s power to require the partici­pation of states and localities in these initiatives.

Immigration Enforcement at the Supreme Court Again

The Supreme Court’s most recent for­ay into immigration enforcement came with the case of Arizona v. United States, which involved a challenge to Arizona’s S.B. 1070, a 2010 law that was expressly intended “to discourage and deter the unlawful entry and presence of aliens and economic activity by per­sons unlawfully present in the United States.” The law created or amended four sections of Arizona state law so as to effectively create criminal liability for being present in the United States without authorization. Although propo­nents of the law argued that it merely “mirrored” federal immigration law, the law criminalized conduct that is not criminalized under federal law, and it created more severe penalties for some conduct penalized already under feder­al law.

S.B. 1070 generated a media firestorm, a maelstrom of public criti­cism and protest, as well as an outpour­ing of vocal support. It also became the focal point for broader discussions of the validity of state and local immigra­tion regulation and enforcement, as a number of states and cities enacted pro­visions that copied and even expanded upon the Arizona law.

The Court struck down three provi­sions of the law in 2012, including a pro­vision that would have required nonciti­zens to face state penalties for failing to carry proof of their lawful status. The majority cited Hines v. Davidowitz, and noted that Congress had already enacted comprehensive regulations in the area of noncitizens’ registration requirements. The Court also struck down a provision that would have crim­inalized individuals for working without legal authorization. The Court noted that Congress had enacted a compre­hensive scheme for the regulation of unauthorized workers with the passage of IRCA, and that Congress had rejected the incorporation of criminal sanctions for workers. Therefore, the Court rea­soned, attempts to criminalize workers conflicted with the objectives of feder­al law. Finally, the Court struck down a provision that would have allowed Arizona law enforcement officials to conduct arrests of noncitizens where they had probable cause to believe the noncitizen had committed an offense that would make them deportable. The Court observed that even federal immigration officers do not necessarily have the authority to arrest someone upon having such probable cause, and that this provision of S.B. 1070 gave Arizona’s officials “greater authority to arrest aliens on the basis of possible removability than Congress has given to trained immigration officers.” The Court concluded that the result would be “unnecessary harassment of some aliens … whom federal officials deter­mine should not be removed.”

The Court did not strike down the entire Arizona law, however. The Court upheld the provision that allows state and local law enforcement to check an individual’s immigration status by con­tacting the federal government when­ever that individual is already detained lawfully (on nonimmigration grounds) by law enforcement and the officer has reason to believe that the individual is unlawfully present in the United States. Consequently, if a state or local officer in Arizona makes a lawful stop in the course of their ordinary duties, and develops reasonable suspicion about a person’s immigration status, they are now required by Arizona law to contact the federal government to ascertain immigration status whenever practi­cable. However, the Supreme Court was very clear that these immigration checks could not prolong a stop beyond the time for which it would otherwise be authorized absent the immigration check, and that the ultimate power to determine immigration status rested with the federal government.

Federal Primacy, Local Power

In the wake of the Court’s decision in Arizona, lower courts declared a number of other state and local stat­utes, including laws in South Carolina and Georgia and local ordinances in Hazelton, Pennsylvania, and Farmer’s Branch, Texas, unconstitutional. But these rulings have not ended state or local involvement in regulating the lives of immigrants. Since 1996, states have been authorized by federal law to deny noncitizens present without legal authorization many forms of state ben­efits. Consequently, many states now deny all but the most basic emergency services to undocumented residents. State and local law enforcement offi­cials also have broad discretion in how they enforce laws. In some jurisdic­tions, general criminal law provisions are enforced in ways that target non­citizens, thereby operating as a form of indirect immigration policing.

Finally, various states and locali­ties resist particular federal immigra­tion directives. For example, in 2012, the Department of Homeland Security began a program known as Deferred Action for Childhood Arrivals (DACA). DACA not only defers any formal removal proceedings against certain eligible noncitizens, but it also allows those noncitizens to receive federal work authorization and apply for driv­er’s licenses. However, it is the states, not the federal government, that issue driver’s licenses, and at least two states, Nebraska and Arizona, have resisted providing DACA recipients with driver’s licenses. On the other side of the equa­tion, several states and localities have indicated their unwillingness to partici­pate in the federal Secure Communities program, and have declined to comply with ICE requests to prolong the deten­tion of certain noncitizens pending transfer to federal authorities.

In short, although there is a uni­form federal immigration law, and although the Supreme Court has declared unequivocally for over a cen­tury that the federal government has the exclusive power to make and enforce that law, the policies and practices of state and local governments throughout the country continue to shape the lived experience of the immigrants within their jurisdiction. Notwithstanding the letter of the law, federal immigration law is always mediated by powerful intervening forces at the state and local level.

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Insights on Law and Society is edited by Tiffany Middleton. She can be reached at tiffany.middleton@americanbar.org