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Immigration Policy: Whose Line Is it Anyway?

Arizona Governor Jan Brewer meeting with President Barack Obama in June 2010 .

Arizona Governor Jan Brewer with President Obama, discussing immigration and border security issues in the wake of SB1070.

The Supreme Court will this week hear oral argument in a case about Arizona's controversial immigration law, S.B. 1070. While the national debate over immigration has become reduced to campaign trail sound bites and a general holding pattern within the Obama Administration, the Supreme Court has the potential with this ruling in the Arizona case to make an important contribution in improving immigration policy. Beyond the practical matter of efficacy, the stakes are high because the case addresses a first organizing principle of our political system, federalism, or the division of labor and authority between levels of governments. A consideration of the historical reality as well as contemporary practice on the actual division of authority in immigration suggests that the Supreme Court should use a scalpel instead of a butcher knife in defining the extent of state participation.

In the appeal regarding Arizona’s immigration law, the Supreme Court must address the question of which level of government (or what combination thereof) should handle immigration policy. Unlike in a unitary system where the will of the national government always trumps the will of subnational units, in a federal system like ours, the U.S. constitution lays out a framework dividing labor and authority between the federal government, states, and localities (counties). Yet, the location of that line and the exact details of the division are unclear and are themselves ongoing sources of political conflict.

Why does this division of labor and authority matter? One reason the constitutional framers chose a federal system is their belief that dividing government authority between layers of government would decrease tyranny and therefore better preserve individuals' liberties. On that count it is questionable whether local immigration laws like Arizona's hurt or help individual liberty.

A major criticism of Arizona's law is that the federal government, not local law enforcement, should be in charge of immigration policy because the role of local law enforcement should be to serve and protect their communities. Their task would be compromised if they were also required to check persons' immigration status, thereby breaking the trust between local law enforcement and immigrant communities. There also have been charges that the Arizona law’s requirement that local law enforcement may stop anyone based on “reasonable suspicion” of their immigration status would lead to widespread racial profiling of foreign-looking and sounding persons. Further, Arizona’s law has spawned much copycat legislation, including Alabama’s law, which is even more draconian. One could reasonably conclude from the controversies surrounding Arizona’s law that the federal government should standardize immigration policy and leave the states and localities out of it. 

Lost in the passions surrounding the contemporaneous controversy is the historical fact that for roughly 150 years before 1891, colonies and then states and localities exclusively created and implemented immigration policy, albeit with tacit federal government support. For over a long time, states and localities created immigration policies while the federal government took time to build up its administrative capacity. When the federal government took over immigration policy in 1891, federal immigration law was merely a replication of colonial era and state laws. Colonies, states and localities originally led the way in pioneering immigration policies because these entities had deeply vested interests in those policies. Our nation’s historical amnesia about this long period distorts the contemporary debate by making it appear as if the federal government always had exclusive and preeminent authority to regulate immigration and that states’ policy making in this area are anomalies.

Moreover, states have historically and in modern times played created innovative pro-immigrant policies. The same federal system that allows states like Arizona to draw up anti-immigrant legislation also provides the flexibility of states to create immigrant friendly legislation. Not all state and local immigration laws take punitive approaches. While the national Congress has repeatedly failed to pass the DREAM ACT, compassionate legislation that would aid undocumented students and those who enlist with the military, states and localities have made headway. States as diverse as California, Illinois, Texas, New Mexico, Oklahoma, and Wisconsin and others have all passed versions of the DREAM ACT that provide in-state tuition benefits and in some states, access to grant money and private scholarships for undocumented students to attend public colleges and universities. 

The Obama Administration has in its legal briefs related to the Arizona case asserted the desirability of the federal government's exclusive right to regulate immigration policy. Many immigration supporters agree with this view based on the assumption that the federal government would do a better job of protecting immigrant rights. Their logic is flawed because our nation could get vastly different centralized national immigration policy depending on whether we have a Democratic or Republican president in the near future.  Even among the GOP primary field, there is a wide array of opinion on this matter. They range from Newt Gingrich's moderate view that long time residents who are undocumented should not be deported and their families should not be ripped apart, to Rick Santorum's views that the constitution should be amended to abolish automatic citizenship for those born to undocumented parents, to former candidate Herman Cain’s insensitive joking about building an electric fence along the U.S. and Mexico. It was former candidate Texas Governor Rick Perry’s support for his state DREAM ACT that was greatly at odds with the GOP platform, which contributed to his demise in the primaries. Depending on your point of view, centralized federal immigration policy may or may not be desirable.

The Supreme Court can use the Arizona case to clarify issues of divisions of labor in immigration policy, which could alleviate concerns about the conflicting roles of local law enforcement. But in so doing, the Court should take great care to delineate the circumstances and conditions under which states can make immigration policy instead of gutting all together the flexibility enabled by a federal system by banning the states entirely from this policy area. A look back at the history of immigration policy making might be a useful guide.

Anna O. Law is associate professor of political science at DePaul University and the author of The Immigration Battle in American Courts (Cambridge University Press, 2010). She is a former program analyst at the U.S. Commission on Immigration Reform, a bipartisan, blue ribbon, congressional committee charged with making policy recommendations to Congress and the White House in the mid-1990s.

She can be reached at cell phone number: 815-546-0309, in the evening at 773-697-3997, or via e-mail at ALAW1@depaul.edu. Her address is:  DePaul University/Political Science, 990 W. Fullerton Ave. Ste. 2200, Chicago, IL, 60614.

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