07

Jun

2016

Immigration and the US Election (Part 1): The New Immigration Federalism

 
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With immigration at the forefront of this year’s US Presidential Election, and a decision from the Supreme Court on United States v. Texas expected at the end of June, we asked some of our authors to reflect on the ongoing debates over the future of immigration law and policy in the United States. This is part one of a four-part series.  

Predictably, as the 2016 Presidential election season reaches full swing, debate on immigration policy has remained atop the national agenda. The headlines over the past several months have focused on outlandish proposals to ban Muslim immigrants and build border walls, or the ability to provide pathways to legalization for millions of undocumented immigrants. Yet, despite the grand pronouncements by the candidates about the sweeping visions they wish to implement, it is far from certain that such talk can translate into tangible and transformative law. Indeed, over the past two decades Congress has made scant little progress on federal immigration reform.

As detailed in The New Immigration Federalism, this outcome is not surprising to careful observers of immigration lawmaking at the state and local level. As my co-author and I argue, despite federal legislative stagnation on immigration reform, states and localities have been enacting immigration-related policies at a record clip over the past ten to fifteen years. What many casual observers might miss is that this surge in subfederal lawmaking significantly influences the probabilities for, and possibilities of, national immigration policy. Looking to the near future, immigration policy is much more likely to be defined by subfederal policies and bold executive action than it is by large-scale federal legislative reform.

Since 2001, as states and localities have moved from bit players in immigration to policy innovators in the field, it has become practically impossible for national lawmakers to compromise on federal proposals that run counter to the trends within their states and districts. This dynamic interrelationship between subfederal preferences and federal proposals has all but eliminated the opportunity for truly comprehensive federal reforms that include a mixture of enforcement provisions, along with much-needed increases in visa allocations and pathways to legalization. Indeed, the House’s rejection of the most recent comprehensive federal immigration bill in 2013 was entirely predictable, and indicative of this pattern of federal polarization and stasis.

Meanwhile, state and local lawmaking on immigration has continued apace, with clear partisan valences. After 2012, the significant restrictionist surge of the mid-to-late 2000’s from Republican areas was accompanied by an integrationist trend led by Democratic states and cities. In contrast to states like Arizona and Alabama, states like California and cities like New York have enacted cutting-edge proposals intended to ease life for undocumented immigrants, protect them from federal immigration prosecution, and provide them with opportunities for social welfare and inclusion.

As these competing restrictionist and integrationist sub-federal policies become entrenched, it will become increasingly difficult for future federal reforms to ignore or override them. Future congressional proposals will likely have to account for these state and local preferences, perhaps by ceding significantly more control to sub-federal authorities to determine certain aspects of immigration policy. Thus, we argue that this new immigration federalism has not only affected the likelihood of federal legislative reform, it will also influence the parameters and terms of that reform if and when it becomes a political reality. In short, over the pass four presidential cycles, partisan positions on immigration policy have become more, not less, entrenched, with states and localities serving as the battlegrounds for a multi-jurisdictional contest over a desirable national immigration vision.

As a related trend, the long federal legislative standoff on immigration reform has also cleaved room for more conspicuous and consequential presidential action as well. The United States v. Texas case pending before the Supreme Court neatly captures these related trends of party polarization, state prominence, and executive action. In the latter half of his Presidency, President Obama twice used his executive and administrative authority to provide relief from deportation to large swathes of the undocumented population. In 2014, after President Obama announced the Deferred Action for Parents of Americans (DAPA), his program was immediately sued (and consequently enjoined) by twenty-six Republican states and state officials.

That case, United States v. Texas, will be decided by the Supreme Court in late June, just before the national nominating conventions for both major political parties. If the Court allows states to sue to halt such federal administrative actions, it will open a new front in immigration federalism and partisan politics. In addition to competing restrictionist and integrationist legislative enactments in Republican and Democratic jurisdictions, federal courts will be increasingly used by states as sites to challenge disagreeable executive enforcement programs. As with the state and local laws, this anticipated litigation will certainly maintain its partisan hue.

In sum, as the Presidential election season casts intense focus on national immigration proposals, it is critical to remain focused on the nuanced, varied, and impactful developments at the state and local level. Whether we end up with a President Trump or a President Clinton, their prospects for implementing their radically different national immigration visions will depend heavily on the extent of their ability to account for and harness immigration federalism.

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About the Author: Pratheepan Gulasekaram

Pratheepan Gulasekaram is Associate Professor at Santa Clara University School of Law. He has published widely on immigration federalism and the constitutional rights of noncitizens both in popular media platforms and prominent legal journals including the New York University Law Review. Before entering academia, Gulasekaram clerked for the US Circ...

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