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Immigration Federalism: Why It Matters for National Reform

In the wake of the 2012 election, immigration reform is one of the seemingly most critical priorities for both Republicans and the Obama administration. Yet, immigration remains one of the most divisive issues in politics today. Given the partisan differences over approaches to immigration reform and ongoing divisions within both parties, it is unclear what, if any, major federal reforms can actually be achieved in Barack Obama’s second term. While the nation waits for a breakthrough on immigration reform, states and local governments have increasingly taken on responsibilities pertaining to immigration in response to the failure of the federal government to act. Last week, the Miller Center hosted a GAGE colloquium featuring Carol Swain of Vanderbilt University, who discussed immigration federalism and the prospects for policy innovation and change as a result of state and local involvement. Swain argued that “state invention can be a positive force for change because it offers new possibilities for innovative policy solutions” and that “state action can become the needed boost that Congress needs to stop kicking the can down the road and begin to exercise its power under the Supremacy Clause to reform the policy.”

Swain argued that the rise in state action on immigration has been the result of a growing incentive to be involved as states respond to the necessity of local enforcement, the lack of federal enforcement, and the need to integrate new immigrants into their societies. According to Swain, changes in immigration patterns have brought noncitizens into new regions of the country and the cost of unauthorized immigration has fallen unevenly across levels of government. Furthermore, since the terrorist attacks of September 11, 2001, the federal government has increasingly relied on states to assist with immigration law enforcement.

State action on immigration has increased in four areas as a result of federally delegated authority. Accepting oversight by federal immigration officials, several states and local authorities have and entered into agreements with the federal government that give them broad responsibilities, including the power to arrest and detain non-citizens for immigration violations, investigation of immigration violations, and collection of evidence in preparation for immigration cases brought before an immigration judge. The federal government has also delegated immigration authority to states to determine immigrant eligibility for federal benefits programs. Local and state agents also assist the federal government in arresting non-citizens and delivering them to federal officials. Finally, states have enacted legislation, ranging from granting in-state tuition to immigrants to forbidding businesses from employing undocumented workers, thus affecting non-citizens either indirectly or directly.

Swain concluded that while the 2012 Supreme Court decision in Arizona v. United States has given grist to the mill of Americans who argue that immigration should be the exclusive purview of the federal government, immigration is no longer a purely national issue. According to Swain:

[Immigration] is a state issue in the same vein as education, crime control, and the regulation of health, safety, and welfare; not only because immigration influences every one of those interests, but because managing the immigration movement itself is a state interest.

In order to achieve the beneficial partnership between local and federal, courts should assess potential conflicts between federal and state laws. Lawmakers should be encouraged to engage in federal-state-local cooperation, and Congress should restrain from over-regulating the issue and thereby excluding state innovation. Integration and acceptance of new citizens must be taken on as a partnership. Although federal law will control who enters the country, states must play a necessary role in integrating new immigrants.

For more historical insight on immigration reform, download and read Carol Swain’s paper and watch the GAGE colloquium here.

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