The constitutional dimension of immigration federalism

Vanderbilt Law Review

Volumn 61, Issue 3, 2008, Pages 787-853

  Huntington, Clare ^a,b,c  

^a UNIVERSITY OF COLORADO   (United States)

^b Columbia Law School ^*

^c OBERLIN COLLEGE   (United States)

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[No Author keywords available]

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EID: 45749131791     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (295)

1. See Farmers Branch, Tex., Ordinance 2903 (May 12, 2007), available at http://www.ci.farmers-branch.tx.us/Communication/ Ordinance%20No%202903.doc (setting forth this restriction and others). The ordinance was temporarily enjoined in June 2007. Villas at Parkside v. City of Farmers Branch, 496 F. Supp. 2d 757, 760 (N.D. Tex. 2007).
2. ARIZ. REV. STAT. ANN. § 23-212 (2007).
3. See S.F., CAL., ADMIN. CODE § 12H.2 (2007) (prohibiting the use of "any city funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation, or court decision"); § 12H.21 ("[N]o officer, employee or law enforcement agency . . . shall stop, question, arrest or detain any individual solely because of the individual's national origin or immigration status."). Other cities have similar measures. See Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449, 1466-75 (2006) (describing similar "sanctuary policies" adopted by numerous major cities including Denver, Houston, Los Angeles, and New York).
4. See Fact Sheet: Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement 2 (Aug. 16, 2006), available at http://www.ice.gov/doclib/pi/news/factsheets/060816dc287gfactsheet.pdf. The federal government has signed similar agreements with agencies in Arizona, California, and North Carolina. See id.
5. In 2007, states enacted 240 immigration-related laws covering topics ranging from public benefits to education to identification requirements. NAT'L CONFERENCE OF STATE LEGISLATURES, 2007 ENACTED STATE LEGISLATION RELATED TO IMMIGRANTS AND IMMIGRATION (2007), available at http://www.ncsl.org/programs/immig/2007Immigrationfinal.htm.
6. See Peter J. Spiro, Learning to Live with Immigration Federalism, 29 CONN. L. REV. 1627, 1627 (1997) (crediting Hiroshi Motomura with the term "immigration federalism");
7. see also Hiroshi Motomura, Federalism, International Human Rights, and Immigration Exceptionalism, 70 U. COLO. L. REV. 1361, 1361 (1999) (defining immigration federalism as "states and localities play[ing a role] in making and implementing law and policy relating to immigration and immigrants").
8. See Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. REV. 493, 515-18 (2001) (describing discriminatory state laws passed pursuant to a federal law permitting states to determine eligibility of non-citizens for public benefits and anticipating more such laws in the next economic downturn).
9. See Kittrie, supra note 3, at 1450-55 (describing disincentives for unauthorized migrants to report crimes to the police). Scholars also have questioned the authority of state and local governments to enforce federal immigration law. See Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1088-95 (2004) (arguing that state and local police have no "inherent authority" to enforce federal immigration laws and that any enforcement authority they may have has been preempted by federal law).
10. See Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. CINN. L. REV. 1373, 1400-01 (2006) ("[I]f local authorities start enforcing immigration laws without proper training, they are prone to engage in racial profiling or other abuses of authority."); Wishnie, supra note 8, at 1102-15 (describing concern of racial profiling with increased use of state and local enforcement of federal immigration law).
11. See Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALB. L. REV. 179, 183-99 (2006) (listing situations in which immigration-based arrests by state and local officials have been crucial). Policymakers have made this argument as well.
12. See Jeff Sessions & Cynthia Hayden, The Growing Role for State & Local Enforcement in the Realm of Immigration Law, 16 STAN. L. & POL'Y REV. 323, 327-29 (2005) (describing the need for state and local enforcement of federal immigration law).
13. See Spiro, supra note 6, at 1628-46 (describing possible benefit of immigration federalism's "steam valve" function, whereby states with strong anti-immigrant sentiment pass state legislation embodying these views and do not seek federal legislation that would impose such views on the entire nation; also noting the potential reasons why immigration federalism may not lead to a race to the bottom in anti-immigrant legislation); see also Victor C. Romero, Devolution and Discrimination, 58 N.Y.U. ANN. SURV. AM. L. 377, 381-85 (2002) (arguing that devolution will not cure racist immigration policies, but that it could benefit same-sex partners if federal immigration law, contrary to the Defense of Marriage Act, recognized same-sex unions sanctioned by states).
14. A comprehensive assessment of the constitutionality of immigration federalism has only just begun. In addition to this Article, two other recent articles address federal exclusivity in immigration. See Cristina Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567, 571-72, 609-17 (2008) (arguing against federal exclusivity because, as a functional matter, all levels of government operate as an integrated system to manage immigration and particularly assimilation);
15. Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 57-92 (arguing against federal exclusivity, also as a functional matter, at least with respect to three areas of immigration policy - employment-based admissions, criminal justice, and employer sanctions - and noting that states, even immigrant-receiving states with large populations of unauthorized migrants, can be more generous than the federal government).
16. For earlier assessments, see Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121, 121-78 (1994) [hereinafter Spiro, Demi-Sovereignties] (addressing federal exclusivity largely from the perspective of international law), and Wishnie, supra note 7, at 527-58 (arguing against immigration federalism in any form).
17. See, e.g., Jason DeParle, Star of the Right Loses His Base at the Border, N.Y. TIMES, Aug. 29, 2006, at A1 (describing downturn in political fortunes of Mike Pence, U.S. Representative, R-Ind., who, after seeking compromise on a federal immigration bill, has become the object of scorn among conservatives);
18. see also Joseph Lelyveld, The Border Dividing Arizona, N.Y. TIMES, Oct. 15, 2006, § 6 (Magazine), at 40 (describing the ongoing battle between Republican Arizona state legislator Russell Pearce, who has helped pass nine laws to discourage illegal immigration, and Democratic governor Janet Napolitano, who has vetoed each bill on "fiscal and constitutional grounds, urging [Pearce] and his Republican supporters to stop playing 'political games'"). This battle occurred before Arizona passed legislation that the governor signed. See infra note 60 (describing the legislation and quoting the governor's reasons for signing it).
19. See Kobach, supra note 10, at 227-33 (assailing arguments asserted by Professors Wishnie and Pham as "bizarre," containing "crucial mistakes," "unsustainable," and "selective and untenable"); Wishnie, supra note 7, at 497-98 ("[A] number of states already have accepted the federal invitation to discriminate . . . . Moreover, there will come a time when state budgets are not so flush, and when episodic American nativism returns. Then, more states will try to balance their budgets on the backs of indigent immigrants.").
20. See Tony Horwitz, Immigration - and the Curse of the Black Legend, N.Y. TIMES, July 9, 2006, at D13 (quoting U.S. Representative Tom Tancredo, R-Col., and then-chair of the House Immigration Reform Caucus, describing illegal immigration as "a scourge" abetted by "a cult of multiculturalism" that has "a death grip" on this nation, and further contending that "[w]e are committing cultural suicide . . . [t]he barbarians at the gate will only need to give us a slight push, and the emaciated body of Western civilization will collapse in a heap"). The issue is also pulling apart communities.
21. See Alex Kotlowitz, Our Town, N.Y. TIMES, Aug. 5, 2007, § 6 (Magazine), at 30 (describing community-wide schisms in Carpentersville, Illinois, over immigration and the appropriate response to it).
22. See, e.g., Complaint at 10-11, Vasquez v. City of Farmers Branch, No. 3-0CV2376-R (N.D. Tex. filed Dec. 26, 2006), available at http://www.aclu.org/immigrants/discrim/277941gl20061226.html (alleging, inter alia, that the regulation violates the Supremacy Clause because it attempts to regulate a matter exclusively reserved to the federal government, and that it additionally violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment);
23. Complaint at 14-15, 18-20, Garret v. City of Escondido, No. 06 CV 2434 (S.D. Cal. filed Nov. 3, 2006), available at http://www.cooley.com/files/ tbl_s5SiteRepository/FileUpload21/927/Federal%20lawsuit.pdf (asserting largely the same causes of action);
24. Complaint at 38-47, Lozano v. City of Hazleton, No. 6-cv-56-JMM (M.D. Pa. filed Oct. 30, 2006), available at http://www.aclu.org/immigrants/ discrim/272201gl20061030.html (same);
25. see also Complaint at 10-15, Valle del Sol, Inc. v. Goddard, 2:07-cv-02518-SMM (D. Ariz. filed Dec. 12, 2007), available at http://www.aclu.org/pdfs/immigrants/valledelsol_v_goddard_complaint.pdf (same).
26. See Ariz. Contractors Ass'n v. Candelaria, Nos. CV07-02496-PHX-NVW, CV07-02518-PHX-NVW, 2008 WL 343082, at *5-15, *17-21 (D. Ariz. Feb. 7, 2008) (denying motion for preliminary injunction of the Legal Arizona Workers Act, and finding the Act not preempted by federal law and not violative of the Due Process Clause); Gray v. Valley Park, No. 4:07CV00881 ERW, 2008 WL 294294, at *31 (E.D. Mo. Jan. 31, 2008) (granting defendant's motion for summary judgment on the basis that the challenged local employment and housing laws are not preempted by federal law and also do not violate the Equal Protection and Due Process Clauses); Villas at Parkside v. City of Farmers Branch, 496 F. Supp. 2d 757, 774-76 (N.D. Tex. 2007) (issuing preliminary injunction on basis that local ordinance is preempted by federal law because it is a regulation of immigration, which the Constitution commits exclusively to the federal government; further finding ordinance unconstitutionally vague and therefore void); Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 517-55 (M-D. Pa. 2007) (permanently enjoining enforcement of local ordinance and finding it expressly preempted by federal law and violative of procedural due process; also addressing other claims under state and federal law); Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1054-59 (S.D. Cal. 2006) (finding local ordinance likely preempted by federal law and a violation of procedural due process).
27. See supra note 16.
28. See, e.g., Motomura, supra note 6, at 1364 (endorsing federal exclusivity); Hiroshi Motomura, Whose Immigration Law?: Citizens, Aliens, and the Constitution, 97 COLUM. L. REV. 1567, 1596-1601 (1997)
29. (reviewing GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW (1996)) (arguing that immigration authority should rest exclusively at the federal level); Pham, supra note 9, at 1381 (arguing that immigration authority is exclusively federal); Wishnie, supra note 7, at 530-31 (same). But see Rodríguez, supra note 11, at 609-17 (challenging federal exclusivity); Schuck, supra note 11, at 57-92 (same, at least with respect to circumscribed areas).
30. Cf. Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1251-52, 1298 & n.252 (1996) (proposing a reconceptualization of federal common law that rests upon an understanding that at least some federal common law stands upon firmer constitutional ground because the rules are passed in areas of "structural preemption" - defined as situations where the structure and relationships created by the Constitution remove certain subjects from "the legislative competence of the states").
31. See infra Parts II.C, IV.
32. See U.S. CONST. art. VI, § 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
33. See Rodríguez, supra note 11, at 576-609 (describing this role).
34. Additionally, as noted at various points throughout this Article, see, e.g., infra text accompanying note 90, if the federal government concludes that certain state and local regulation runs afoul of national interests and it wishes to prevent such action, statutory preemption is always available to the federal government.
35. See infra Part III.C.
36. See, e.g., Wishnie, supra note 7, at 504-09 (discussing Supreme Court decisions applying equal protection analysis to immigration issues).
37. See Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948) (defining immigration law to concern "what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization").
38. See infra note 175 (describing how federal law takes cognizance of state laws regarding, for example, marriage and criminal convictions).
39. See Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C).
40. When the political branches of the federal government enact and enforce immigration laws, they receive wide latitude from the judiciary. Under the plenary power doctrine, courts are reluctant to hear constitutional challenges regarding the laws governing the admission and removal of non-citizens. See, e.g., Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 550-60 (1990) (describing plenary power doctrine and relevant cases).
41. The plenary power doctrine has long been the subject of criticism, see, e.g., Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1, 6-7 (1998) (arguing that the doctrine allows racial discrimination in immigration law), and some scholars doubt its continuing vitality, see, e.g., Motomura, supra, at 564-75 (arguing that the Supreme Court has undermined the plenary power doctrine by rendering "subconstitutional" decisions in statutory interpretation cases);
42. Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L.J. 339, 339-41 (2002) (explaining how two Supreme Court decisions "point the way to the abandonment of plenary power"). Of course, the idea that decision-making by the political branches is insulated from judicial review does not necessarily mean the political branches are free from constitutional constraint.
43. See Cornelia T.L. Pillard & T. Alexander Aleinikoff, Skeptical Scrutiny of Plenary Power: Judicial and Executive Branch Decision Making in Miller v. Albright, 1998 SUP. CT. REV. 1, 32-40 (arguing that the plenary power doctrine is best understood as a doctrine of "institutional deference" in the immigration context, with the Court underenforcing constitutional norms, not announcing a separate set of substantive norms);
44. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1218-20 (1978) (discussing underenforced constitutional norms). Whether the political branches can, in fact, be relied upon to restrain themselves, however, is another question.
45. See generally Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676 (2005) (arguing that the "actual practices" of the political branches, and particularly the executive branch, raise serious doubts as to the claim that the executive branch can provide an independent assessment of constitutional obligations). An interesting question that need not be resolved in this Article is whether a state or local pure immigration law would receive the same level of deference. This case is unlikely to come before the Supreme Court because of the federal dominance in pure immigration law, but, in light of the arguments I advance in this Article, arguably such enactments also should enjoy similar judicial deference. In other words, if the Constitution permits all levels of government to enact pure immigration law, then all enactments should receive judicial deference. On the other hand, as I elaborate below, state and local authority over pure immigration law is premised on state and local authority over matters of local concern, not foreign affairs. And the relationship between immigration and foreign affairs is one of the main justifications for judicial deference.
46. See Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) (finding no violation of the Equal Protection Clause in federal rule that limited Medicare to citizens, and stating that "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens"); id. at 85 ("Insofar as state welfare policy is concerned, there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are non-citizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business."); see also Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 MINN. L. REV. 1625, 1645 (2007) ("When Congress has denied benefits to aliens that it grants to citizens, it has had to justify its denial by articulating an immigration purpose in order to avoid heightened scrutiny on an equal protection challenge.").
47. For example, in a series of cases, the Court recognized the power of a state to restrict the devolution of real property to non-citizens based on a state's broad authority to regulate real property within its borders. See Frick v. Webb, 263 U.S. 326, 333-34 (1923) (noting that the exercise of such power does not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment); Webb v. O'Brien, 263 U.S. 313, 321-22 (1923) (same); Porterfield v. Webb, 263 U.S. 225, 232-33 (1923) (same); Terrace v. Thompson, 263 U.S. 197, 216-18 (1923) (same). The Court also has broadly recognized state authority to regulate areas traditionally of state concern, even when the regulation might touch upon immigration. See DeCanas v. Bica, 424 U.S. 351, 355-56 (1976) ("California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. Thus, absent congressional action, § 2805 would not be an invalid state incursion on federal power."); see also id. at 356 ("States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen's compensation laws are only a few examples.").
48. See Graham v. Richardson, 403 U.S. 365, 371-72, 376 (1971) (finding alienage a suspect class, prompting strict scrutiny of two states' discriminatory laws concerning economic benefits for legal permanent residents); see also Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419-20 (1948) (finding state regulation limiting commercial fishing licenses to persons ineligible for citizenship to violate Equal Protection); Truax v. Raich, 239 U.S. 33, 43 (1915) (finding state employment restrictions on immigrants to violate Equal Protection); Yick Wo v. Hopkins, 118 U.S. 356, 369-74 (1886) (finding Equal Protection to apply to non-citizens because the use of the term "person" in the Fourteenth Amendment should be read literally to include all people within the territory of the United States).
49. 457 U.S. 202, 219 n. 19, 223 (1982).
50. Cabell v. Chavez-Salido, 454 U.S. 432, 438-39 (1982).
51. See, e.g., Toll v. Moreno, 458 U.S. 1, 17 (1982) (finding Maryland statute denying children of certain non-citizens in-state tuition violated the Supremacy Clause because it contradicted the federal government's determination that such non-citizens were permitted to establish domicile after legal admittance into the country); Hines v. Davidowitz, 312 U.S. 52, 68-74 (1941) (finding Pennsylvania statute requiring aliens to register annually invalid and in conflict with similar federal legislation).
52. See infra Part II.B.
53. See Linda Bosniak, Varieties of Citizenship, 75 FORDHAM L. REV. 2449, 2451-52 (2007). Bosniak argues that the distinction between alienage and immigration law is highly problematic and that the fight to categorize a regulation as one or the other carries tremendous weight, given that the categorization greatly affects how the regulation will be treated. She further notes that [u]nderstanding this interplay helps us to understand the push and pull of some of our current debates over the status of immigrants, from drivers' licenses to disaster relief to local police enforcement of immigration law. These debates are invariably structured by disagreements over the legitimate scope of the national border as a regulatory domain. At stake is the question of how far into the lives of aliens the border can, and should extend. Id.
54. See Wishnie, supra note 7, at 526 (discussing this distinction and noting that it is not dispositive in case law).
55. See Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 VA. J. INT'L L. 201, 203 (1994) (arguing that a distinction between immigration law and alien law is "more formal than real" because of the overlap in practice).
56. See id.
57. See infra text accompanying notes 60, 71.
58. In the mid-1990s, six states sued the federal government seeking reimbursement for state expenses incurred in providing services to unauthorized migrants and seeking to require the federal government to enforce federal immigration laws. Each suit was dismissed. See Texas v. United States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), aff'd 106 F.3d 661 (5th Cir. 1997) (citing a lack of judicial authority to review plaintiffs claims); New Jersey v. United States, No. 94-CV-03471 (D.N.J. Aug. 3, 1995), affd 91 F.3d 463 (3d Cir. 1996) (dismissing the claim as a nonjusticiable political question); Arizona v. United States, No. 94-0866 (D. Ariz. Apr. 18, 1995), aff'd 104 F.3d 1095 (9th Cir. 1997) (relying on the reasoning in California v. United States, 104 F.3d 1086 (9th Cir. 1997)); Padavan v. United States, No. 94-CV-1341 (N.D.N.Y. Apr. 18, 1995), aff'd 82 F.3d 23 (2d Cir. 1996) (finding no case law, constitutional, or statutory support for plaintiffs complaint); California v. United States, No. 94-0674-K (S.D. Cal. Mar. 3, 1995), aff'd 104 F.3d 1086 (9th Cir. 1997) (dismissing due to lack of authority to review agency actions and failure to state a Tenth Amendment cause of action); Chiles v. United States, 874 F. Supp. 1334 (S.D. Fla. 1994), aff'd 69 F.3d 1094 (11th Cir. 1995) (dismissing the claim as a nonjusticiable political question). In November 2006, voters in the state of Colorado approved a referendum requiring the state to file suit against the United States to demand enforcement of federal immigration laws. See COLO. REV. STAT. § 24-19.8-101 (2006). That suit was dismissed as well. See Suthers v. Gonzales, No. 07-cv-00478-LTB-MJW, 2007 WL 2788603 (D. Colo. Sept. 21, 2007) (dismissing the claim for numerous reasons, including lack of jurisdiction because the claim presented a nonjusticiable political question).
59. See infra Part II.A.
60. See NAT'L CONFERENCE OF STATE LEGISLATURES, supra note 5, at 1 (describing increase in rate of state laws: in 2007, over 1500 pieces of legislation were introduced and 240 were enacted, nearly triple the number of similar laws enacted in 2006).
61. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 133, 110 Stat. 3009 (codified at 8 U.S.C. § 1357(g) (2000)).
62. Id. Specifically, section 287(g) provides that The [Secretary of Homeland Security] may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the [Secretary] to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law. Id.
63. See 8 U.S.C. § 1357(a)-(d) (enumerating the powers of immigration officers and employees).
64. Compare Katie Zezima, Massachusetts Set for Its Officers to Enforce Immigration Law, N.Y. TIMES, Dec. 13, 2006, at A24 (describing outgoing Massachusetts Governor Mitt Romney's agreement with the federal government under section 287(g), but anticipating that incoming governor, Deval Patrick, might revoke the agreement),
65. with Katie Zezima, Massachusetts Rescinds Deal on Policing Immigration, N.Y. TIMES, Jan. 12, 2007, at A17 [hereinafter Zezima, Massachusetts Rescinds Deal] ("Gov. Deval L. Patrick said Thursday that as expected, he had rescinded a new agreement between Massachusetts and federal officials that empowered the state police to arrest illegal immigrants on charges of violating immigration law.").
66. See Fact Sheet, supra note 4, at 2 (stating that Florida, Alabama, and agencies in Arizona, North Carolina, and California have entered into 287(g) agreements); see also Kobach, supra note 10, at 197 (noting that Florida became the first state to enter into such an agreement, effective July 7, 2002).
67. See, e.g., Kobach, supra note 10, at 198.
68. See Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") of 1996, Pub. L. No. 107-171, §§ 571-77, 116 Stat. 134 (codified at 8 U.S.C. § 1612(b)(1)) (authorizing states to determine eligibility of certain immigrants for specified federal benefit programs, including Medicaid and Temporary Assistance to Needy Families).
69. See supra Part I.A.
70. Compare Aliessa v. Novello, 754 N.E.2d 1085, 1098-99 (N.Y. 2001) (finding New York eligibility provision authorized by PRWORA to be subject to strict scrutiny because Congress cannot authorize the states to discriminate between non-citizens and citizens, and therefore striking down the provision as a violation of Equal Protection), with Soskin v. Reinertson, 257 F. Supp. 2d 1320, 1325-27 (D. Colo. 2003) (finding state law determining non-citizen eligibility pursuant to PRWORA subject to rational basis review because the provision was sanctioned by federal law and the program was dually funded by both the federal and state governments, and thus distinct from the state-only program in Aliessa).
71. See Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, to the Attorney General, Non-preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for Immigration Violations 7-8 (Apr. 3, 2002) [hereinafter OLC Opinion], http://www.aclu.org/ FilesPDFs/ACF27DA.pdf (withdrawing "the 1996 OLC Opinion's advice that federal law precludes state police from arresting aliens on the basis of civil deportability"). In the interest of full disclosure, I note that I worked on the opinion when I was an attorney-advisor in the Office of Legal Counsel.
72. See Eric Schmitt, Administration Split on Local Role in Terror Fight, N.Y. TIMES, Apr. 29, 2002, at A1 (describing conflict, including the White House's disagreement with the opinion);
73. Eric Schmitt, Two Conservatives Tell Bush They Oppose Plan for Police, N.Y. TIMES, June 2, 2002, at A24 ("Two leading conservatives have joined a chorus of police officials and immigrant rights advocates in opposing a Justice Department proposal to allow state and local law enforcement agencies to track down illegal immigrants as a way to fight terrorism."). Several groups, including La Raza and the ACLU, successfully sued the Department of Justice to disclose its 2002 OLC Opinion. Nat'l Council of La Raza v. Dep't of Justice, 411 F. 3d 350, 352 (2d Cir. 2005) (affirming district court order to disclose OLC memorandum); see supra note 54.
74. See OLC Opinion, supra note 54, at 2-4 (finding that "such arrest authority inheres in the States' status as sovereign entities"). This opinion reversed an earlier OLC opinion finding that states and localities could enforce only the criminal provisions. See Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26, 32 (1996) (finding "that state and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws").
75. For example, Alaska, Maine, New Mexico, Oregon, and the District of Columbia have policies restricting local law enforcement of federal immigration law. OR. REV. STAT. § 181.850(1) (2005); H.J. Res. 22, 23rd Leg., 1st Sess. (Alaska 2003); Governor of New Mexico, Bill Richardson, Exec. Order No. 2005-019, Clarifying Victim and Witness Protections in New Mexico (Apr. 7, 2005); Governor of Maine, John E. Balducci, Exec. Order, An Order Concerning Access to State Services By All Entitled Maine Residents (Apr. 9, 2004) (as slightly modified by Governor of Maine, John E. Balducci, Exec. Order, An Order Amending the Order Concerning Access to State Services By All Entitled Maine Residents (Feb. 25, 2005)); Mayor's Memorandum 84-41 (D.C. 2003).
76. Counties in California and North Carolina have entered into section 287(g) agreements with the federal government, see Fact Sheet, supra note 4, at 2, whereas San Francisco, Detroit, and numerous other cities have enacted laws prohibiting such enforcement, see NAT'L IMMIGRATION LAW CTR., LAWS, RESOLUTIONS AND POLICIES INSTITUTED ACROSS THE U.S. LIMITING ENFORCEMENT OF IMMIGRATION LAWS BY STATE AND LOCAL AUTHORITIES (2007), http://www.nilc.org/immlawpolicy/LocalLaw/locallaw_limiting_tbl_2007-10-11.pdf.
77. H.B. 2779, 48th Leg., 1st Reg. Sess., 2007 Ariz. Sess. Laws. 279 (codified in scattered sections, including ARIZ. REV. STAT. § 23-212 (LexisNexis 2007)).
78. The governor's transmittal letter stated that "[i]mmigration is a federal responsibility, but I signed House Bill 2779 because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs." Letter from Janet Napolitano, Governor of Ariz., to Jim Weiers, Speaker of the House, Ariz. House of Representatives (July 2, 2007), http://azgovernor.gov/dms/upload/ NR_070207_HB%202779%20Statement.pdf. The letter went on to say: Because of Congress' failure to act, states like Arizona have no choice but to take strong action to discourage the further flow of illegal immigration through our borders. I renew my call to Congress to enact comprehensive immigration reform legislation. Now that Arizona has acted, other states are likely to follow. For our country to have a uniform and uniformly enforced immigration law, the United States Congress must act swiftly and definitively to solve this problem at the national level. Id.
79. See Farmers Branch, Tex., Ordinance 2903 (May 12, 2007) ("The owner and/or property manager shall require as a prerequisite to entering into any lease or rental arrangement, including any lease or rental renewals or extensions, the submission of evidence of citizenship or eligible immigration status for each tenant family . . . ."); Cherokee County, Ga., Ordinance 2006-003 (Dec. 5, 2006) (stating that "to let, lease, or rent" or "suffer or permit the occupancy" of a dwelling unit by an "illegal alien" is prohibited and "shall be deemed to constitute harboring"); Escondido, Cal., Ordinance 2006-38 R § 3 (Oct. 18, 2006) (declaring it unlawful for the owner of a dwelling unit to "harbor" an "illegal alien," and defining "harboring" as "to let, lease, or rent a dwelling unit to an illegal alien" or "[t]o suffer or permit the occupancy of the dwelling unit by an illegal alien"). These laws are not faring well. As noted above, the Farmers' Branch ordinance has been temporarily enjoined, see supra note 1; similarly, the Escondido ordinance has been preempted by state law, see CAL. CIV. CODE § 1940.3 (West 2007) (effective Jan. 1, 2008) (prohibiting local governments from passing laws requiring landlords to monitor
80. See Hazleton, Pa., Ordinance 2006-40 (Dec. 26, 2006) ("Illegal Immigration Relief Act Implementation Amendment" - amending Ordinance 2006-18 by adding § 7, "Implementation and Process"); Hazleton, Pa., Ordinance 2006-18 (Sept. 8, 2006) ("City of Hazleton Illegal Immigration Relief Act Ordinance" as amended); Hazleton, Pa., Ordinance 2006-13 (Aug. 15, 2006) (Tenant Registration Program ordinance). The Hazleton ordinances are the subject of current litigation. See supra notes 15-16 and accompanying text. Importantly, some state measures limiting eligibility for public benefits are sanctioned by the federal government in the Personal Responsibility and Work Opportunity Act of 1996, which authorized states to establish their own non-citizen eligibility criteria for specified public benefits. See supra text accompanying note 51.
81. E.g., Oklahoma Taxpayer and Citizen Protection Act of 2007, H.B. 1804, 51st Leg., 1st Sess. § 3 (Okla. 2007) (codified at OKLA. STAT. tit. 21, § 446 (effective Nov. 1, 2007)); see also COLO. REV. STAT. § 18-13-127(b)(3) (2007) (forbidding trafficking in persons and upgrading the offense for trafficking in adults who "are illegally present in the United States").
82. On this point in general, see Peter H. Schuck, Some Federal-State Developments in Immigration Law, 58 N.Y.U. ANN. SURV. AM. L. 387, 389-90 (2002) (noting that the anticipated "race to the bottom" has not occurred and instead numerous states, including those with large immigrant populations, have restored benefits on the state level that had been lost at the federal level, in some instances providing new benefits, including Medicaid).
83. But see Daniel C. Vock, With Feds Stuck, States Take on Immigration, STATELINE.ORG, Dec. 13, 2007, http://www.stateline. org/live/details/story?contentId=264483 (noting that "laws restricting the rights or benefits of illegal immigrants outnumbered laws benefiting them by a 2-1 ratio").
84. New Mexico has the most generous law, providing that "[a]ny tuition rate or state-funded financial aid that is granted to residents of New Mexico shall also be granted on the same terms to all persons, regardless of immigration status." N.M. STAT. ANN. § 21-1-4.6(B) (West 2007). Other states extend in-state tuition to unauthorized migrants with minor conditions attached. See CAL. EDUC. CODE § 68130.5(a)(4) (West 2007) (providing an exemption from nonresident tuition for unauthorized migrant students who swear by affidavit that they have applied for legal immigrant status or will do so as soon as eligible); 110 ILL. COMP. STAT. §§ 305/7e-5(a)(5), 520/8d-5(a)(5) (2008) (same, although not specifying that the rule applies to unauthorized migrants and instead appears to apply to anyone who is not a citizen or legal permanent resident); KAN. STAT. ANN. § 76-731a(b)(2)(C) (2006) (similar rule as in California); N.Y. EDUC. LAW §§ 355(2)(h)(8), 6206(7)(a) (Consol. 2007) (same); OKLA. STAT. ANN. tit. 70, § 3242(B)(2) (West 2007) (same); TEX. EDUC. CODE ANN. §§ 54.052, 54.053(3)(B) (same); UTAH CODE ANN. § 53B-8-106(2) (West 2007) (same); WASH. REV. CODE ANN. § 28B.15.012(2)(e) (West 2004) (same); WIS. STAT. ANN. § 36.27(2)(a)(6) (West 2007) (allowing length of time in state requirements to be met by intermittent work in the state). Nebraska has the strictest rule. See NEB. REV. STAT. § 85-502(5) (2007) (requiring proof of prior application for legal immigration status).
85. See Sarah Kershaw, New York, Faulting U.S., Says It Will Pay for Cancer Care for Illegal Immigrants, N.Y. TIMES, Sept. 26, 2007, at B3 ("Federal health officials have told New York State that they will no longer help cover the cost of chemotherapy for illegal immigrants with cancer because it does not qualify under an emergency Medicaid program. But yesterday, state health officials said they would cover all the costs no matter what the federal government does.").
86. See Community Services, New Haven's Elm City Resident Cards - Fact Sheet, http://cityofnewhaven.com/pdf_whatsnew/municipalidfactsheet.pdf (last visited Feb. 10, 2008) ("Providing residents who otherwise have no proof of ID with a municipal identification card will help overcome reluctance to report crimes they may suffer or witness and also provide identification to law enforcement and other officers if required.");
87. S.F., Cal., Ordinance 274-07 (Nov. 20, 2007), available at http://www.sfgov.org/site/bdsupvrs_page.asp?id=73995, (authorizing County Clerk to issue municipal identification cards upon request to residents).
88. See 820 ILL. COMP. STAT. ANN. § 55/12 (LexisNexis 2008) (prohibiting employers from "enrolling in any Employment Eligibility Verification System, including the Basic Pilot program" until the Social Security Administration and Department of Homeland Security "are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days"). The federal government has challenged this law as statutorily preempted. See Press Release, Dep't of Justice, Justice Department Seeks to Invalidate Illinois Law Flouting Federal Immigration Efforts (Sept. 24, 2007), available at http://www.usdoj.gov/opa/pr/2007/September/07_civ_757.html ("Today's lawsuit seeks to invalidate an Illinois state law that frustrates our ability to assist employers in making sure their workforce is legal, and in doing so conflicts with federal law.").
89. For example, although section 287(g) agreements have been possible since 1996, no state had entered into an agreement with the federal government until after September 11, 2001. See U.S. Immigration & Customs Enforcement, Partners, http://www.ice.gov/partners/287g/Section287_g.htm (last visited Feb. 10, 2008) (describing the process for developing a law enforcement partnership). Since September 11, 2001, Florida, Alabama, and agencies in Arizona, North Carolina, and California have entered into such agreements. See Fact Sheet, supra note 4, at 2; see also Kobach, supra note 10, at 180-82 (describing the various steps federal administrators have taken as a result of September 11, 2001, to encourage greater local involvement in the enforcement of immigration policy). Similarly, local law enforcement "sanctuary policies," which specify that officers should refrain from asking questions or acting in a way that may contribute to an unauthorized alien's removal from their locality, also have been on the rise since September 11, 2001. Kittrie, supra note 3, at 1455.
90. There are two issues at play: the net economic impact of immigration and the distribution of that impact. Addressing the second issue, conventional wisdom maintains that there is a "large and systematic mismatch . . . between the revenues that immigrants generate for [the federal] government and the expenditures that [state] governments make on behalf of immigrants." Schuck, supra note 64, at 390. Addressing both issues, a study conducted by the University of Arizona found that immigrants (defined as all foreign-born individuals, regardless of status, including naturalized citizens) produce a net economic benefit within Arizona. See JUDITH GANS, UDALL CTR. FOR STUDIES IN PUB. POLICY, UNIV. OF ARIZ., IMMIGRANTS IN ARIZONA: FISCAL AND ECONOMIC IMPACTS 3-6 (2007), http://udallcenter.arizona.edu/programs/immigration/publications/ immigrants_in_arizona.pdf (finding net fiscal impact of immigrants in 2004 positive, with tax revenues equaling $2.4 billion and fiscal costs totaling $1.4 billion; further finding $44 billion in total economic output attributable to immigrants). The study did not separately address the economic costs and benefits of unauthorized migration, but it did note that the majority of immigrants in Arizona were there unlawfully (an estimated 450,000 to 500,000 of the total 830,900 foreign-born population), that these individuals were largely of working age, and that they were primarily low-skilled workers, filling an important economic niche in Arizona's economy. See id. at 61. For further discussion of this issue, particularly for sources finding a negative fiscal and economic impact, see infra note 126.
91. See, e.g., Ralph Blumenthal, Texas Lawmakers Put New Focus on Illegal Immigration, N.Y. TIMES, NOV. 16, 2006, at A22 (quoting Texas State Representative Burt R. Solomons as saying that the surge in Texas anti-immigrant laws is attributable to "[a]bsolute frustration" with the federal government's failure to "do what they're supposed to do" to control the border with Mexico). Unauthorized migration itself has been fueled by larger forces such as federal subsidies for certain crops, particularly corn, which leads to the overproduction of those crops followed by the sale of the excess in Mexico, a possibility facilitated by the North American Free Trade Agreement. According to one article, this process has led to the unemployment of two million Mexican farmers and agricultural workers, some portion of whom then come to the United States unlawfully seeking work.
92. See Michael Pollan, You Are What You Grow, N.Y. TIMES, Apr. 22, 2007, § 6 (Magazine), at 15 ("The flow of immigrants north from Mexico since Nafta is inextricably linked to the flow of American corn in the opposite direction, a flood of subsidized grain that the Mexican government estimates has thrown two million Mexican farmers and other agricultural workers off the land since the mid-90s.").
93. See supra note 42 (describing these lawsuits).
94. See CONG. BUDGET OFFICE, A DESCRIPTION OF THE IMMIGRANT POPULATION 8, 15 (2004), available at http://www.cbo.gov/ftpdocs/60xx/doc6019/11-23-Immigrant.pdf (documenting three-fold increase in immigrant population in North Carolina, Georgia, and Nevada and significant increases in other states, including Arkansas, Utah, Tennessee, Nebraska, Colorado, Arizona, and Kentucky);
95. Comprehensive Immigration Reform: Impact of Immigration on States and Localities: Hearing Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law of the H. Comm. on the Judiciary, 110th Cong. 77-78 (2007) (statement of Dr. Audrey Singer, Immigration Fellow, Brookings Institute) [hereinafter Comprehensive Immigration Reform Hearing], available at http://judiciary.house.gov/media/pdfs/ printers/110th/35452.pdf (describing shift in immigrant presence from urban areas to suburban and rural areas).
96. See Comprehensive Immigration Reform Hearing, supra note 73, at 75 (testimony of Dr. Audrey Singer, Immigration Fellow, Brookings Institute). Even in states with a more significant history of immigration, such as Arizona, the recent surge in immigration is notable. See GANS, supra note 70, at 9 (describing a 200 percent increase in the population of non-citizens in Arizona between 1990 and 2004, and noting that the number of unauthorized migrants approximately doubled between 2002 and 2005, from between 250,000 and 350,000 to 500,000 individuals).
97. See Kobach, supra note 10, at 180-99 (discussing the value of local law enforcement to effective immigration law and, therefore, to more effective national security).
98. See id. (identifying federal measures intended to engage state and local authorities in enforcing immigration law); Sessions & Hayden, supra note 10, at 327-29 (arguing in favor of state and local law enforcement participation in immigration law enforcement, particularly with respect to identifying and apprehending "alien absconders").
99. See supra Part I.B (describing "alienage" law, meaning laws concerning non-citizens in the United States, and further describing the blurring of, and contested line between, the categories).
100. It is also true that in some instances the Constitution precludes a role for the federal government and authorizes only state regulation. See United States v. Morrison, 529 U.S. 598, 618 (2000) ("The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States."). This type of constitutional allocation of authority is not at issue here.
101. U.S. CONST. art. I, § 8, cl. 8 ("To promote the Progress of Science and useful Arts, by securing, for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries . . . ."). In an interesting parallel to this Article, despite what may appear to be a clear textual command for structural preemption, a closer examination of patent and copyright law reveals a long struggle to define the boundaries of federal versus state control. See EDWARD C. WALTERSCHEID, THE NATURE OF THE INTELLECTUAL PROPERTY CLAUSE: A STUDY IN HISTORICAL PERSPECTIVE 435-76 (2002) (examining the relationship between federal and state government with respect to intellectual property rights enforcement). According to Walterscheid, while the "states clearly had power to issue patents and copyrights prior to the ratification of the Constitution," it was unclear whether the federal Patent and Copyright Acts of 1790 and subsequent amendments precluded states from continuing to do so. Id. at 468-69. In 1812, New York's Court for the Correction of Errors, in dicta, indicated "that state and federal patent and copyright power were concurrent, i.e., the grant of patent and copyright power to Congress in the intellectual property clause was not exclusive." Id. at 469 (paraphrasing Livingston v. Van Ingen, 9 Johns. 507, 560 (N.Y. 1812)). The U.S. Supreme Court did not address this issue until more than one hundred and fifty years later. In cases from 1964 through 1973, the Court seesawed between suggesting federal preemption and foreclosing federal preemption. See id. at 470. Even after Congress, in 1976, revised copyright law to "broadly preempt[], with narrow exceptions, all state laws bearing on material subject to federal copyright," id. at 472, the Court muddied the waters again in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989). Walterscheid observes that "[i]f a fundamental purpose of the [intellectual property] clause is to promote uniformity with regard to intellectual property, as the Court states [in Bonito], then it is unclear to what limited extent, if any, the states retain any concurrent jurisdiction over patents and copyrights." WALTERSCHEID, supra, at 472.
102. U.S. CONST. art. I, § 8, cl. 8 ("To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings . . . ."). See discussion supra note 79 (describing ambiguity of federal exclusivity for patent and copyright).
103. U.S. CONST. art. I, § 8, cl. 4 ("To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . ."). As with patent and copyright, there is also an argument that federal authority over bankruptcy is concurrent with, and not exclusive of, state authority. See Hanover Nat'l Bank v. Moyses, 186 U.S. 181 187-88 (1902) (stating that "the states, in surrendering the power, did so only if Congress chose to exercise it, but in the absence of congressional legislation retained it").
104. See Clark, supra note 19, at 1251-52, 1298 & n.252 (describing structural preemption).
105. See, e.g., id. at 1298 & n.252 (discussing "structural preemption" of state law in the context of foreign affairs); see also Gilbert v. Minnesota, 254 U.S. 325, 336-38 (1920) (Brandeis, J., dissenting) (raising the argument, although not using this exact term, that structural preemption precluded state regulation of speech bearing upon a national issue, such as World War I).
106. See, e.g., Zschernig v. Miller, 389 U.S. 429, 432 (1968) (striking down state law, not because it violated the Supremacy Clause or the prohibitions on state conduct in Article I, Section 10, but rather because the law was "an intrusion by the state into the field of foreign affairs which the Constitution entrusts to President and the Congress"); United States v. Pink, 315 U.S. 203, 233 (1942) ("Power over external affairs is not shared by the States; it is vested in the national government exclusively."); United States v. Belmont, 301 U.S. 324, 331 (1937) ("[I]n respect of our foreign relations generally, state lines disappear. As to such purpose the state . . . does not exist."); LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 150 (2d ed. 1996) ("At the end of the twentieth century as at the end of the eighteenth, as regards U.S. foreign relations, the states 'do not exist.'");
107. Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 SUP. CT. REV. 295, 304 ("Our Constitution assigns to the federal government a virtual monopoly over international relations.").
108. See MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 264-82 (2007) (arguing that the Framers did envision a role for the states in foreign affairs, as evidenced by the prohibitions on state involvement in specified matters in Article I, Section 10, by the Tenth Amendment, and by the Supremacy Clause, which, taken together, allow for at least some state activity affecting foreign affairs);
109. Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 394 (1998) (arguing that there may be some federalism-based limitations on the treaty power).
110. But see David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075, 1279 (2000) (challenging this view).
111. But see Curtis A. Bradley, The Treaty Power and American Federalism, Part II, 99 MICH. L. REV. 98, 99 (2000) (rebutting the claims of Professor Golove). As discussed below, the Supreme Court has acknowledged that states may be able to regulate foreign affairs insofar as this is an incidental effect of regulation that otherwise falls within traditional state competence. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 419-20 (2003).
112. Courts sometimes refer to a dormant foreign affairs preemption. See Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 52-55 (1st Cir. 1999) (finding state law preempted by dormant foreign affairs power), vacated, Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000) (declining to reach dormant foreign affairs claim). As Jack Goldsmith argues, "dormant preemption operates like statutory preemption without a statute." Jack L. Goldsmith, Statutory Foreign Affairs Preemption, 2000 SUP. CT. REV. 175, 203-05. For an argument against dormant foreign affairs preemption, see RAMSEY, supra note 85, at 275-82.
113. See Am. Trucking Ass'n v. Mich. Pub. Serv. Comm'n, 545 U.S. 429, 433 (2005) ("Our Constitution was framed upon the theory that the peoples of the several states must sink or swim together. Thus, this Court has consistently held that the Constitution's express grant to Congress of the power to 'regulate Commerce . . . among the several States,' contains a further, negative command, known as the dormant Commerce Clause, that creates an area of trade free from interference by the States. This negative command prevents a State from jeopardizing the welfare of the Nation as a whole by placing burdens on the flow of commerce across its borders that commerce wholly within those borders would not bear." (internal citations and quotations omitted)). For an excellent discussion of the dormant commerce clause and interstate relations more broadly, see generally Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468 (2007).
114. See New England Power Co. v. New Hampshire, 455 U.S. 331, 339-40 (1982) ("It is indeed well settled that Congress may use its powers under the Commerce Clause to confer upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy." (internal quotation omitted)).
115. U.S. CONST. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State . . . ."). But see Michael S. Grève, Compacts, Cartels, and Congressional Intent, 68 MO. L. REV. 285 (2003) (describing cases in which federal courts appear not to enforce the Compact Clause).
116. See Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 131 (2004) ("Preemption doctrine . . . starts from the proposition that the states and the Nation share power in an area; its central preoccupation is the management of conflicts that inevitably arise in such situations.").
117. See infra Part IV.D.
118. See, e.g., Wishnie, supra note 7, at 530-52 (explaining Supreme Court jurisprudence on the exclusivity of the federal immigration power).
119. See infra Part II.B.1.c.
120. See supra note 18.
121. See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1, 81-83 (2002) (describing, with a few minor and contested exceptions, the constitutional silence "regarding governmental control over aliens," and noting that "[t]he constitutional text does not expressly address authority to regulate immigration").
122. U.S. CONST. art. I, § 8, cl. 4 (authorizing Congress "[t]o establish a uniform Rule of Naturalization . . . throughout the United States").
123. See Chinese Exclusion Case, 130 U.S. 581, 631 (1889) (finding the power to exclude foreigners to be an incident of sovereignty belonging to the government).
124. See, e.g., id. (locating federal authority to regulate immigration in the foreign affairs power).
125. See, e.g., Head Money Cases, 112 U.S. 580, 591-93 (1884) (finding immigration to be a subset of "commerce with foreign nations" and therefore within Congress's exclusive power to regulate); Henderson v. New York, 92 U.S. 259, 270-71 (1876) (invalidating state-imposed tax on debarking immigrants as conflicting with federal power to regulate commerce with foreign nations).
126. See U.S. CONST. art. I, § 10.
127. See DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 214-46 (2d ed. 2005) (noting that "[p]ublic attacks on . . . slavery began as early as the 1750s," and describing the heated debates during the Convention between supporters and opponents of slavery).
128. See Cleveland, supra note 95, at 98 (describing fear of southern states "that free blacks from the North and West Indies would provoke dissension and revolt among the slaves in their territories," and "[b]ecause free blacks were citizens in some northern states, slaveholding states felt that they could maintain the right to exclude free blacks only by asserting the power to exclude all persons deemed dangerous or injurious to their interests"); Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1866-67 (1993) (describing an argument made by historians that a primary cause of the federal government's failure to adopt qualitative restrictions on immigration before the Civil War was the slave states' jealous insistence on maintaining power over the movement of free blacks as a state's right).
129. See ARISTIDE R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 78 (2006).
130. See Hines v. Davidowitz, 312 U.S. 52, 62-66 (1941) (noting foreign affairs implications of immigration regulation); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (same); Spiro, Demi-Sovereignties, supra note 11, at 134-44 (describing this argument).
131. See Hines, 312 U.S. at 64 (discussing the importance of protecting rights of a country's own nationals when those nationals are in another country); Chy Lung, 92 U.S. at 279 ("[I]f citizens of our own government were treated by any foreign nation as subjects of the Emperor of China have been actually treated under this law, no administration could withstand the call for a demand on such government for redress."). The Court gave the example of international treaties that safeguard the rights of aliens while in other countries and found that one state's effort to protect its own interests might run afoul of this international obligation, thus embroiling the entire country in an international dispute. Hines, 312 U.S. at 62-66.
132. See supra note 84 (describing the dominant view that federal exclusivity in foreign affairs rests upon structural preemption). But see supra text accompanying note 85 (describing dissenting views); infra text accompanying notes 122-124 (discussing dissenting views on this subject and Supreme Court's decision in Garamendi).
133. Motomura, supra note 18, at 1591. For more on the relationship between immigration law and national self-definition, see ZOLBERG, supra note 103.
134. See Motomura, supra note 18, at 1591 ("[I]mmigration decisions give citizens the chance to choose new citizens and decide who 'we' are as Americans. Immigration decisions also give citizens the chance to establish and apply basic principles of government and public life. So viewed, immigration is a process of national self-definition.").
135. See id. at 1594 (noting the significance of the Naturalization Clause of the Fourteenth Amendment in federalizing immigration law).
136. Id. at 1591.
137. Id.
138. 8 U.S.C. § 1182(a)(4) (2000).
139. Id. § 1182(a)(1).
140. Id. § 1182(a)(2).
141. See Schuck, supra note 64, at 390 (noting the "very important" problem of the "large and systematic mismatch . . . between the revenues that immigrants generate for [the federal] government and the expenditures that [state] governments make on behalf of immigrants"). But see supra note 70, (discussing a University of Arizona study finding positive fiscal and economic impact from "immigrants," defined as all foreign-born individuals, although comprising largely unauthorized migrants).
142. See Motomura, Whose Immigration Law?, supra note 18, at 1592 (arguing that self-definition has emerged not only as a coequal to self-preservation, but also as being "uniquely within federal competence").
143. To begin, only legal permanent residents are eligible for citizenship. 8 U.S.C. § 1427(a). Of the approximately twenty million non-citizens living long term in the United States in 2005 (not counting non-citizens here on short-term visas, such as students and temporary workers), nearly ten million were here unlawfully and therefore could not become citizens. See STEVEN A. CAMAROTA, CTR. FOR IMMIGRATION STUDIES, IMMIGRANTS AT MID-DECADE: A SNAPSHOT OF AMERICA'S FOREIGN-BORN POPULATION IN 2005, at 23 (Dec. 2005), available at http://www.cis.org/articles/2005/back1405.pdf (estimating between 9.6 and 9.8 million illegal immigrants in the United States in 2005);
144. NANCY F. RYTINA, OFFICE OF IMMIGRATION STATISTICS, ESTIMATES OF THE LEGAL PERMANENT RESIDENT POPULATION AND POPULATION ELIGIBLE TO NATURALIZE IN 2004, at 3 (Feb. 2006), available at http://www.dhs.gov/xlibrary/assets/statistics/ publications/LPRest2004.pdf (presenting estimates of numbers of legal permanent residents eligible and ineligible to naturalize). Additionally, many of the legal permanent residents who are eligible to naturalize chose not to do so, although the percentage choosing to naturalize has been increasing.
145. See JEFFREY S. PASSEL, PEW HISPANIC CTR., GROWING SHARE OF IMMIGRANTS CHOOSING NATURALIZATION 1 (2007), available at http://pewhispanic.org/files/reports/74.pdf (reporting increase in naturalization rate to 52% as of 2005).
146. See Spiro, Demi-Sovereignties, supra note 11, at 125-26 (explaining that tensions arise between states when burdens associated with immigration fall unevenly among the states).
147. It could be argued that self-definition can occur at a regional level. In the context of unauthorized migration, states are taking very different approaches to such migrants, with eight states offering in-state tuition to unauthorized migrants on the one hand, see supra note 65, and Arizona enacting a particularly punitive law to discourage unauthorized migration on the other, see supra text accompanying notes 59-60. Thus, to use a short hand, it could well be that the same individual is an "unauthorized migrant" in some states but an "illegal alien" in others, reflecting various degrees of hostility and welcome to non-citizens.
148. See Neuman, supra note 102, at 1840 n.34 (arguing that federal exclusivity "is neither natural nor inevitable in United States federalism or in federalism generally, as illustrated by Canada and Germany, where federal sub-units still have immigration responsibilities"); see also Schuck, supra note 64, at 387-88 (describing immigration federalism developments in Canada, Germany, and Switzerland); Spiro, Demi-Sovereignties, supra note 11, at 122 (arguing that federal exclusivity "is not a structural necessity").
149. See Spiro, Demi-Sovereignties, supra note 11, at 122 ("[M]any, if not most, foreign nations have come to understand fully the nature of American federalism. They understand that where an individual state acts, the federal government bears no instigatory responsibility and, indeed, that Washington is powerless to work its reversal as either a legal or a political matter.").
150. See U.S. CONST. art. 1, § 10; RAMSEY, supra note 85 (arguing that the Framers envisioned a role for the states in foreign affairs, as evidenced by Article I, Section 10's prohibitions on state involvement in specified matters, by the Tenth Amendment, and by the Supremacy Clause, which, taken together, allow for at least some state activity affecting foreign affairs); Curtis A. Bradley & Jack L. Goldsmith, The Abiding Relevance of Federalism to U.S. Foreign Relations, 92 AM. J. INT'L L. 675, 676-79 (1998) (finding a constitutional balance between state and federal implementation of international obligations);
151. Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395, 1423 (1999) (challenging the legitimacy of a "'structural' preemption" argument in the area of foreign relations).
152. See Bradley & Goldsmith, supra note 122, at 677 ("This institutional arrangement treats foreign relations and federalism as competing values and largely leaves it to the federal political branches to decide when a state act has sufficiently adverse effects on foreign relations to require preemption."); see also Neuman, supra note 102, at 1897 (noting that the federal government alone can make treaties and negotiate with other countries, so it makes sense for the federal government to regulate immigration, but that this does not necessarily mean that state regulation is unconstitutional).
153. 539 U.S. 396, 419-20, 428 (2003). For purposes of this Article, it is unnecessary to wade into the substantial criticism of the case but for one example, see RAMSEY, supra note 85, at 288-99.
154. For example, the law at issue in Crosby v. National Foreign Trade Council arguably was an expression of Massachusetts' views of the military regime in Myanmar. See 530 U.S. 363, 378-80 (2000). The law was not intended to protect the health or safety concerns of the state, but rather was an attempt to sanction the regime for its acts in Myanmar. The residents of Massachusetts may well feel strongly about the political state of affairs in Myanmar, but, as that case suggests, the residents' views are best expressed as national views, at least to the extent the national government has already expressed a view.
155. See The Budgetary Impact of Current and Proposed Border Security and Immigration Polices: Hearing on H.R. 4437 and S. 2611 Before the S. Comm. on the Budget, 109th Cong. 4 (2006) (statement of Paul R. Cullinan, Chief, Human Resources Cost Estimates Unit of the Congressional Budget Office), available at http://www.cbo.gov/ftpdocs/75xx/doc7511/08-30-Immigration.pdf ("CBO's review of the research on immigration found that over the long term, immigration tends to affect federal finances positively and state and local finances negatively."). This is a hotly contested issue and a central subject in current debates over immigration.
156. For a variety of views and a review of the research, see Comprehensive Immigration Reform Hearing, supra note 73.
157. One of the most widely cited, but now somewhat dated, sources on this issue is NAT'L RESEARCH COUNCIL, THE NEW AMERICANS: ECONOMIC, DEMOGRAPHIC, AND FISCAL EFFECTS OF IMMIGRATION (James P. Smith & Barry Edmonston eds., Nat'l Acad. Press, 1997).
158. See also Spiro, Demi-Sovereignties, supra note 11, at 125-26 (noting that the "fiscal downside" of illegal immigration is not spread evenly across state lines, and discussing "three discrete types of costs to state governments"). But see supra note 70, (discussing University of Arizona study finding positive fiscal and economic impact from "immigrants," defined as all foreign-born individuals, although most were unauthorized migrants).
159. See Rodríguez, supra note 11, at 581-609 (arguing that the structures of the nation state struggle to capture the "diverse forms of membership needed to assimilate the effects of global trends" and that the participation of unauthorized immigrants is "facilitated through the market and through local communities, not through the national government"); see also Rick Su, The Immigrant City (bepress Legal Series, Paper No. 1688, 2006), http://law.bepress.com/cgi/viewcontent.cgi? article=7930&context=expresso (describing the potentially constructive role cities can play in the development of immigration policy).
160. See Spiro, Demi-Sovereignties, supra note 11, at 153.
161. See Gerald E. Frug & David J. Barron, International Local Government Law, 38 URB. LAW. 1 (2006) (describing emergence of twin phenomenon: interest of international actors in the relationship between national governments and cities, and cities' "use of international institutions to redefine the scope of their domestic legal powers," resulting in "international local government law").
162. See id.; Spiro, Demi-Sovereignties, supra note 11, at 153-54, 161-74. Professor Motomura recognizes this argument as well, although he responds that the self-definition understanding of immigration law still weighs in favor of federal exclusivity. Motomura, supra note 6, at 1372-75.
163. See Spiro, Demi-Sovereignties, supra note 11, at 163-67 (discussing two examples where the international community was savvy about dealing with the federalist structure of the United States, targeting individual states rather than the nation as a whole: (1) a California unitary tax scheme that disadvantaged UK-based Barclays Bank, which triggered British retaliatory action only against corporations registered in California and other states with the unitary taxing scheme, and (2) Mexico's response to the Proposition 187 ballot measure, which included lobbying and boycotts aimed at California and an official statement from the Mexican government which contained an "express recognition that the California law did not represent the policies of the federal government").
164. See Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 YALE L.J. 1564, 1626-52 (2006) (exploring the "intake of transnational rights" through state courts, city councils, state legislatures, mayors, and national organizations of local officials).
165. Howard F. Chang, Public Benefits and Federal Authorization for Alienage Discrimination by the States, 58 N.Y.U. ANN. SURV. AM. L. 357, 360 (2003).
166. Most notably the Act of Mar. 3, 1875, ch. 141, 18 Stat. 477, and the Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882).
167. See Neuman, supra note 102, at 1841-83 (1993) (describing in general terms the kinds of state laws during the period, including "regulation of the movement of criminals; public health regulation; regulation of the movement of the poor; [and] regulation of slavery," and also noting that some state laws applied to international as well as interstate migration). As Professor Neuman explains, many of the early state statutes are not readily categorized as "immigration" statutes because when states regulated the movement of people, they often did not distinguish between citizens and non-citizens, instead drawing lines based on state citizenship. Id. at 1837. Certainly, some state statutes did apply to the movement of people across international borders. See, e.g., id. at 1842 & n.47 (discussing state statutes that prohibited the entry of convicts from outside the United States). As Professor Neuman summarizes the history, [i]mmigration law prior to 1875 was a complex hybrid of state and federal policy. Federal decision-makers validated certain local policies. Congress gave explicit approval to state quarantine laws and state laws excluding black aliens; Supreme Court Justices assigned some categories of immigration regulation to state police power in language that indicated approval rather than indifference; and the Executive urged foreign governments to respect policies whose only statutory embodiment was in state law. The failure to enact uniform immigration policies at the national level resulted from a combination of forces - not just pro-immigration sentiment, but also a desire to keep migration policy within state authority. When slavery ceased to divide the nation, national immigration regulation became possible. Id. at 1896-97. For another account of the state role in immigration, see ZOLBERG, supra note 103, at 1-23.
168. See Neuman, supra note 102, at 1837, 1841; see also id. at 1837-38 ("For purposes of this Article, a statute regulates immigration if it seeks to prevent or discourage the movement of aliens across an international border, even if the statute also regulates the movement of citizens, or movement across interstate borders, and even if the alien's movement is involuntary.").
169. 48 U.S. (7 How.) 283 (1949).
170. See Cleveland, supra note 95, at 99-106 (discussing cases and concluding that they "brought little resolution of the power [of states] to restrict the entry and exit of aliens"); Neuman, supra note 102, at 1885-93 ("Even within this standard line of cases [read as developing the exclusive federal power over immigration regulation], there is a counterstory to be read that favors state authority.").
171. See Neuman, supra note 102, at 1896-97 ("When slavery ceased to divide the nation, national immigration regulation became possible.").
172. See id. at 1897-98.
173. See Cleveland, supra note 95, at 106 (concluding that, during the antebellum period, "[t[he Court was fiercely divided on the question" of federal exclusivity). 142. 92 U.S. 275 (1875).
174. Id. at 279-80.
175. See, e.g., Japan Line, Ltd. v. Los Angeles County, 441 U.S. 434, 450 n.16 (1979); Hines v. Davidowitz, 312 U.S. 52, 63 (1941); Cleveland, supra note 95, at 109 (discussing Chy Lung and concluding that "the decision appeared motivated by a desire both to protect aliens seeking entry from unequal and arbitrary state treatment and to preserve national control over foreign relations"); Wishnie, supra note 7, at 530-32.
176. 92 U.S. at 280 (emphasis added).
177. This type of balancing is precisely what I call for in infra Part III.
178. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203-06 (1824) (finding that conduct that could be regulated by Congress because it concerned foreign commerce could also be regulated by the states as an exercise of state police power, providing the state law did not conflict with the federal law). For a longer discussion of this and other cases, see Neuman, supra note 102, at 1885-93. This nineteenth century trend has modern echoes in dictum from the Supreme Court noting that states may regulate pursuant to their traditional authority even if that regulation touches upon foreign affairs. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 418-20 (2003) (reviewing several Court opinions addressing potential conflicts between state laws and federal authority over foreign affairs, and concluding that "it would be reasonable to consider the strength of the state interest . . . when deciding how serious a conflict must be shown before declaring the state law preempted").
179. 424 U.S. 351, 354 (1976).
180. Id. at 364-65 (upholding state statute that prohibited an employer from knowingly employing non-citizens without lawful residence status if such employment would have an adverse effect on lawful resident workers); see also id. at 355 ("[T]he Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.").
181. In another example, the Court stated in Hines v. Davidowitz that it would rule on only one question, "expressly leaving open all of appellees' other contentions, including the argument that the federal power in this field, whether exercised or unexercised, is exclusive." 312 U.S. 52, 62 (1941). The Court then applied a statutory preemption analysis, finding that "the regulation of aliens is so intimately blended and intertwined with the responsibilities of the national government that where it acts, and the state also acts on the same subject, the act of Congress . . . is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it." Id. at 66. Finding that the federal government's authority was "superior," and that Congress had enacted "a complete scheme of regulation," the Court found the state provision preempted. Id.
182. Although Professor Cleveland argues that "the Court's decisions between 1875 and 1886 rejected the possibility of an exclusive or concurrent state power over immigration and upheld an exclusive federal authority to impose head taxes and inspect immigrants," Cleveland, supra note 95, at 121, she also notes that at least one of the leading cases likely rested on statutory preemption, see id. at 109-10 (discussing New York v. Compagnie Générale Transatlantique, 107 U.S. 59 (1883), where the Court struck down a New York quarantine statute arguably because the federal government had enacted immigration legislation and the Court concluded that the state and federal statutes "cannot coexist"). The other central case from that time, Henderson v. Mayor of New York, 92 U.S. 259 (1875), did conclude that immigration authority was exclusively federal. See id. at 272-74 (finding that "this whole subject has been confided to Congress by the Constitution"). Although this would appear to foreclose the possibility of concurrent state authority, the Court handed down this decision and the decision in Chy Lung - with the language quoted in the text, which explicitly left the door open for at least some state regulation - on the same day. My argument is not that the decisions from this era clearly recognized concurrent state authority, but rather that the decisions did not completely foreclose the possibility of state authority to regulate immigration based on a state's police powers.
183. Neuman, supra note 102, at 1887.
184. For a discussion of dormant preemption in general, and in the foreign affairs context in particular, see RAMSEY, supra note 85, at 273-82 (arguing against finding a broad dormant preemption of foreign affairs authority).
185. See, e.g., Robert Nagel, The Formulaic Constitution, 84 MICH. L. REV. 165, 201 (1985) (observing that, when applying the dormant Commerce Clause in Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 670-76 (1981), "the Court retains the option either to defer to or to second-guess the legislative judgment," then "insist[s] on appearing to exercise both these choices").
186. A statutory preemption view of immigration authority still allows for national uniformity. For better or worse, statutory preemption precludes a role for the states on what may be important issues. See Young, supra note 90, at 130-31 ("The whole point of preemption is generally to force national uniformity on a particular issue, stifling state-by-state diversity and experimentation. And preemption removes issues within its scope from the policy agenda of state and local governments, requiring that citizen participation and deliberation with respect to those issues take place at the national level.").
187. It is uncertain whether the constitutional right to travel articulated in Shapiro v. Thompson, 394 U.S. 618 (1969), would prohibit state laws regulating the movement of non-citizens. As reinterpreted in Saenz v. Roe, 526 U.S. 489, 501, 503 (1999), the right to travel is grounded in the privileges and immunity clause, which protects only citizens. Chang, supra note 133, at 362 n.30.
188. One important exception is the incorporation of state criminal and marriage laws, on which immigration laws often turn. Id. at 360. To be sure, the state laws matter only to the extent that the federal government recognizes them, but, with regard to the delegation question discussed below, this incorporation of state laws typically is not seen as an unconstitutional delegation, perhaps telling us something important about the recognition of state authority.
189. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). See generally Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998) (presenting a model of U.S. federalism as enabling national coordination of local solutions to various types of problems).
190. Some commentators distinguish decentralization from federalism, e.g., Edward Rubin & Malcom Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 910-14 (1994), recognizing the potential benefits of the former in some instances while remaining critical of the latter, see id. at 914-26.
191. See Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) ("This federalist structure of joint sovereigns . . . allows for more innovation and experimentation in government.").
192. See id. (arguing that state authority "makes government more responsive by putting the States in competition for a mobile citizenry"); Richard Briffault, "What about the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1314 (1994) (describing the theoretical benefits of state competition within a federal system). The argument, as advanced by Charles Tiebout, is that sub-national governments can be conceived of as acting like private firms competing for profits, although the competition is for citizens.
193. See Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956) ("[T]he consumer-voter moves to that community whose local government best satisfies his set of preferences.").
194. See ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 21-29 (1970) (describing how exit helps organizations promote efficiency);
195. Clayton Gillette, Regionalization and Interlocal Bargains, 76 N.Y.U. L. REV. 190, 200-02 (2001) (arguing that the expansion of jurisdictional boundaries threatens the benefits of decentralization because, among other reasons, minority dissenters within larger jurisdictions have higher exit costs and therefore less credible threats of migration when local government does not account for their preferences).
196. See Gregory, 501 U.S. at 458 (noting that dual sovereignty "increases opportunity for citizen involvement in democratic processes"); DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 91-106, 139 (1995) ("[O]ne of the stronger arguments for a decentralized political structure is that, to the extent the electorate is small, and elected representatives are thus more immediately accountable to individuals and their concerns, government is brought closer to the people, and democratic ideals are more fully realized.");
197. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Sovereignty Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 856 n.152 (1998) ("[B]y devolving power to territorially circumscribed states responsive to a local electorate, federal regimes allow groups smaller than a national majority to satisfy their preferences for public goods, multiply opportunities for political participation, and diffuse power in a way to promote electoral competition.").
198. See New York v. United States, 505 U.S. 144, 181 (1992) ("'[F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power.'" (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting))); Gregory, 501 U.S. at 458 ("Perhaps the principal benefit of the federalist system is a check on abuses of government power."); Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1448-51 (1987) ("[F]ederalism enabled the American People to conquer government power by dividing it. Each government agency, state and national, would have incentives to win the principal's affections by monitoring and challenging the other's misdeeds.").
199. Dissenting opinions in Supreme Court decisions express these concerns, as well. See, e.g., Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 652 (1999) (Stevens, J., dissenting) ("It was equally appropriate for Congress to abrogate state sovereign immunity in patent infringement cases in order to close a potential loophole in the uniform federal scheme, which, if undermined, would necessarily decrease the efficacy of the process afforded to patent holders.").
200. See SHAPIRO, supra note 162, at 138 ("[T]he moral and practical forces favoring equality look toward the virtues of uniformity not only as a cost-saver but as something approaching a natural right.").
201. See id. at 44-45 (describing Madison's argument that a strong centralized government offers economic benefits because, among other reasons, "the range of parties and interests that would exist within the territorial jurisdiction of such a large national government would be so wide that no single faction, or small group of factions, could exercise power for selfish purposes").
202. See id. at 42, 46 ("[W]hen market imperfections call for some regulatory action, social welfare is more likely to be maximized when such action is taken on a national level.").
203. See id. at 42-43 (describing the necessity for uniform national regulation to overcome states' economic incentives to compete by under-regulating).
204. See id. at 46-50 (presenting examples of problems more efficiently addressed on a national level because of its greater combined resources and/or centralized authority).
205. See id. at 50-56 (summarizing the history of federal protection of individuals and groups disfavored by state and local authorities); Harry N. Scheiber, Constitutional Structure and the Protection of Rights: Federalism and the Separation of Powers, in POWER DIVIDED: ESSAYS ON THE THEORY AND PRACTICE OF FEDERALISM 17, 26 (H. Schieber & M. Feeley eds., 1989) (noting benefits of federalism, but concluding that "the record of American federalism . . . represents tragic failure with regard to acting as a bulwark of liberty").
206. These competing, core values play out in four basic models of federalism: (1) dual federalism, see Alden v. Maine, 527 U.S. 706, 714-15 (1999); (2) cooperative federalism, see New York v. United States, 505 U.S. 144, 167-68 (1992); Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. REV. 663, 665 (2001) ("In contrast to dual federalism, cooperative federalism envisions a sharing of regulatory authority between the federal government and the states that allows the states to regulate within a framework delineated by federal law.");
207. (3) empowerment federalism, see Erwin Chemerinsky, Theories of Federalism: Federalism Not as Limits, But as Empowerment, 45 U. KAN. L. REV. 1219, 1239 (1997);
208. see also Erwin Chemerinsky, The Values of Federalism, 47 FLA. L. REV. 499, 539 (1995) ("[F]ederalism can be reconceived not as about limiting federal power or even as about limiting state or local power. Rather, it should be seen as based on the desirability of empowering multiple levels of government to deal with social problems.");
209. and (4) interactive federalism, see Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 243, 245 (2005) (arguing that the "interaction of national and state governments, rather than their separation, [is] the primary means of realizing the aims of federalism," and therefore arguing in favor of "polyphonic federalism[, which] does not divide state and federal authority, but instead seeks to harness the interaction of state and national power to advance the goals associated with federalism"). The extent to which each model protects or threatens these values is contested empirically and normatively, however. One benefit of applying a federalism lens to immigration is that it allows us to draw upon the rich descriptive frameworks of the various models of federalism. Current state and local immigration regulation does not fall neatly into any one model of federalism but instead embodies strains of many of the models. For example, the enforcement of immigration law could be described as both cooperative federalism and dual federalism. The enforcement anticipated by section 287(g) neatly fits the paradigm of cooperative federalism, with the federal government establishing the goals of enforcement and then permitting states and localities to take an active role on the ground, subject to federal supervision. Other types of state and local enforcement are better described as falling under the dual federalism model, with sub-national units drawing on their inherent authority to enforce federal law and doing so without federal oversight. In another example, immigration regulation increasingly embodies the interactive federalism model. State governments have sued the federal government to enforce federal immigration law, and the federal government is looking to states and localities for assistance in the enforcement of immigration law. Finally, federal laws such as the Personal Responsibility and Work Opportunity Reconciliation Act manifest elements of an empowerment federalism model. The federal government empowers the states to do what they otherwise could not do - discriminate on the basis of alienage. One of the issues raised by shared authority will be to determine which model of federalism best furthers the interests of the various levels of government. As noted above, there are various elements of each model; it may not be strictly necessary to elevate one model over others, but over time it may become apparent which model best embodies and serves the multiple, and often divergent, interests at stake.
210. See Kobach, supra note 10, at 183-99 (describing the importance to national security of state and local enforcement of immigration regulations).
211. See Wishnie supra note 7, at 552-58 (arguing that "devolution would erode the antidiscrimination and anticaste principles that are at the heart of our Constitution and that have long protected noncitizens at the subfederal level").
212. See supra Part II.B.1.b.
213. This is not completely true. Current federal immigration law incorporates state criminal and marriage laws and thus can lead to divergent results, depending on the location of the non-citizen. See Chang, supra note 133, at 360 (observing that divergent state marriage laws cause inconsistent immigration consequences). In other words, immigration regulation already is not uniform. Of course, the decision to incorporate divergent state laws was made at the national level, but it is some indication of the tolerance for nonuniformity.
214. See supra note 65.
215. See Secure Fence Act of 2006, Pub. L. No. 109-367 (2006) (codified at 8 U.S.C. §§ 1103 note, 1701 note).
216. See Spiro, supra note 6, at 1628-46 ("Those states desiring stricter enforcement of immigration laws could pursue that objective without imposing their preference on states in which immigration might be considered a neutral or positive factor."). For an argument in favor of experimentalism in immigration, see Matthew Parlow, A Localist's Case for Decentralizing Immigration Policy, 84 DENV. U. L. REV. 1061, 1069-73 (2007) (observing that "local government experimentation in the immigration realm can lead to successes or failures that can inform federal policy-making").
217. See, e.g., COLO. REV. STAT. § 24-76.5-103(1) (2007) ("[E]ach agency or political subdivision of the state shall verify the lawful presence in the United States of each natural person eighteen years of age or older who applies for state or local public benefits or for federal public benefits for the applicant."); id. § 24-76.5-103(4) (allowing only specified forms of identification to establish immigration status, including a Colorado driver's license or identification card; a United States military card or a military dependent's identification card; a Native American tribal document; or an affidavit stating the individual is "otherwise lawfully present in the United States pursuant to federal law").
218. See Dan Frosch, Inmates Will Replace Wary Migrants in Colorado Fields, N.Y. TIMES, Mar. 4, 2007, at A1 (describing the severe shortage of agricultural workers in the wake of anti-immigrant laws and the efforts to replace those workers with inmates; also describing the decisions by potential workers to stay in New Mexico or other states, to the great chagrin of local farmers);
219. see also Beth Potter, Are State's Immigration Laws Chasing away Workers?, DENV. BUS. J., Apr. 13, 2007, at A1 (describing the same shortage in agriculture and also finding anecdotal evidence that the anti-immigrant laws are affecting other industries, such as construction).
220. See Ken Belson & Jill P. Capuzzo, Towns Rethink Laws Against Illegal Immigrants, N.Y. TIMES, Sept. 26, 2007, at A1 (detailing how Riverside, New Jersey, repealed an ordinance "penalizing anyone who employed or rented to an illegal immigrant," and thus "join[ed] a small but growing list of municipalities nationwide that have begun rethinking such laws as their legal and economic consequences have become clearer" after "hundreds, if not thousands," of immigrants left the town).
221. See ZOLBERG, supra note 103, at 3-4 (describing the efforts of Thomas Jefferson, Alexander Hamilton, and James Madison to explore "the relationship between population, land, and labor to determine what immigration policy would best serve broader goals of nation-building and economic development").
222. See supra note 156.
223. For a discussion of fundamental rights apart from their consideration in federalism debates, see infra Part III.C.
224. See Wishnie, supra note 7, at 515-18.
225. See Schuck, supra note 64, at 389-90 (noting that the anticipated "race to the bottom" has not occurred and instead numerous states, including those with large immigrant populations, have restored benefits on the state level that had been lost at the federal level, in some instances providing new benefits, including under Medicaid). As Professor Chang notes, instead of the laboratories of bigotry that Professor Wishnie hypothesizes, see Wishnie, supra note 7, at 553, "we might just as plausibly view federal authorization of divergent state policies as creating laboratories of generosity toward immigrants," Chang, supra note 133, at 363-64 (emphasis added). But see Vock, supra note 64 (noting that "laws restricting the rights or benefits of illegal immigrants outnumber laws benefiting them by a 2-1 ratio").
226. See Romero, supra note 11, at 383 ("[T]he bottom line appears to be this sad fact: if racism within immigration law and policy is systemic, then devolution will not cure the problem."); see also Chang, supra note 133, at 363-66 (arguing that a nondevolvability principle serves the interest of uniformity, but not necessarily antidiscrimination). Professor Chang further argues that it is conceivable that insisting on nondevolvability may lead Congress, in some instances, to enact laws more discriminatory than those that might be enacted pursuant to the devolution of federal authority. See id. at 364.
227. See Kittrie, supra note 3, at 1466-75 (describing "sanctuary policies" in effect in numerous large cities).
228. See id. at 1475-77 (observing that the "complexity of federal immigration law inevitably results in poorly trained local officials engaging in profiling by using race and ethnicity as proxies for immigration status").
229. See SHAPIRO, supra note 162, at 139 (arguing that the existence of state and local political power "serve[s] the important function of bringing democracy closer to the people").
230. Richard Briffault, Our Localism: Part II - Localism and Legal Theory, 90 COLUM. L. REV. 346, 429 (1990).
231. Under current law, non-citizens are unable to vote, at least in federal elections and in the vast majority of non-federal elections. This has not always been the case. Historically, at least twenty-two states and territories allowed non-citizens to vote. Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1393 (1993).
232. See, e.g., Oscar Avila, Marchers Plan Their Next Step, CHI. TRIB., May 3, 2006, at 3 (describing similar marches in Chicago with 100,000 people rallying on March 10, 2006, and over 400,000 on May 1, 2006);
233. Christopher Hawthorne, Architecture: Critic's Notebook, L.A. TIMES, Dec. 31, 2006, at 1 (describing massive immigration-rights marches in Los Angeles that drew over a half a million marchers on March 25, 2006, and an additional several hundred thousand workers on May 1, 2006, calling these the largest political rallies outside of Washington, D.C., since the Vietnam era).
234. Although some leaders called this the beginning of "the new civil rights movement," Jessie Mangaliman, Immigration Rights Backers Marching On; Counterprotest Also Set Monday as Both Sides Seek to Send Message to Congress, SAN JOSE MERCURY NEWS, Sept. 2, 2006, at B1, some scholars are skeptical of this prospect,
235. see Kevin R. Johnson & Bill Ong Hing, The Immigrant Rights Marches of 2006 and the Prospects for a New Civil Rights Movement, 42 HARV. C.R.-C.L. L. REV. 99, 101 (2007) ("We discern decidedly mixed signals about the possibility of such a movement. Despite signs of promise and potential, there are many formidable hurdles before the emergence of a new, multiracial civil rights movement.").
236. The federal government, in a way that states and localities simply are not, is accountable to other nations, which is one of the arguments for federal exclusivity. My point here concerns political accountability to individuals.
237. Other individuals besides former non-citizens will support measures that favor non-citizens, and certainly some former non-citizens will vote against measures that favor non-citizens. My point is not to predict with absolute certainty how individuals and groups will vote, but is, rather, the unremarkable observation that voting preferences vary by location.
238. See Amar, supra note 163, at 1448-51.
239. Depending on the particular politics in place at the time, the states and localities could be enacting laws that are pro-immigrant or anti-immigrant, but arguably there is value either way.
240. For example, when Illinois passed a law prohibiting employers in the state from using a federal database to verify the immigration status of potential workers, the federal government filed suit, claiming the state law was preempted by federal laws governing employee verification. See supra note 68 and accompanying text.
241. Of course, this issue is complex, and the absence of federal preemption will not always indicate a lack of commitment to a policy. But it would be some evidence.
242. See supra text accompanying notes 30-34 (describing the heightened scrutiny of state and local laws that restrict economic benefits for non-citizens lawfully in the country).
243. To the extent the exercise of discretion constitutes substantive lawmaking, there could be a challenge under Article I. The question is framed, traditionally, in terms of the Vesting Clause. See U.S. CONST. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States . . . ."). There is a difference between a delegation from Congress to federal agencies, which must involve no more guidance than an "intelligible principle," Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) (citing J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)), and a delegation from Congress to a non-federal entity, which is a much stickier wicket, cf. Norman R. Williams, Why Congress May Not "Overrule" the Dormant Commerce Clause, 53 UCLA L. REV. 153, 221-27 (2005) ("Whitman involved a delegation of rulemaking authority to a federal agency. The Court, however, has been far less permissive of the delegation of rulemaking power to nonfederal entities.").
244. Printz v. United States, 521 U.S. 898, 922 (1997) (finding that "meaningful Presidential control" is essential to a constitutional delegation of federal authority to state entities).
245. See U.S. CONST. art. 2, § 2 (setting forth the President's responsibility to "Take Care that the [federal] Laws are faithfully executed").
246. See supra Part I.B.
247. As discussed above, when the federal government enacts an alienage law, that enactment is subject to judicial review under the rational basis standard. By contrast, when a state or locality does so, its enactment is subject to the strict scrutiny standard. See supra text accompanying notes 30-34.
248. See supra note 53.
249. Two interesting questions in this regard are whether the rise of "vigilantes" on the southern border is akin to private attorneys general in the private enforcement context, and whether Congress could similarly empower such individuals to enforce federal immigration law. See Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1461-80 (2003) (analyzing the constitutional limits on delegation of governmental authority to private actors).
250. Today, the state-staffed port-of-entry hypothetical may well be "absurd," Wishnie, supra note 7, at 566, and I use it simply for illustrative purposes. Moreover, I am not proposing a bright line rule to distinguish circumstances where the legal authority question should come out differently. I am simply pointing to a series of questions and noting that enforcement authority is not monolithic.
251. See supra notes 45-47 and accompanying text (describing conduct authorized by section 287(g)).
252. See supra notes 51-53 and accompanying text (discussing federal legislation like the Personal Responsibility and Work Opportunity Reconciliation Act and the scrutiny with which courts review its preemptive effects).
253. A related question is whether states and localities can choose not to enforce federal immigration regulations. See Printz v. United States, 521 U.S. 898, 920 (1997) (applying the anti-commandeering principle set forth in New York v. United States, 505 U.S. 144 (1992), to a law commandeering local law enforcement officers). For a discussion of this question, see Pham, supra note 9.
254. See OLC Opinion, supra note 54, at 3-4 (finding no statutory preemption of enforcement authority). Although there may be room for disagreement on this narrow statutory interpretation issue, Congress could clarify the matter, as it has already tried to do once. See Border Protection, Antiterrorism, and Illegal Immigration Control Act, H.R. 4437, 109th Cong. § 220 (2005) (stating that there is no statutory preemption of state arrest authority in the area of immigration).
255. The OLC Opinion, without specifically addressing the basis for federal exclusivity, concludes that states and localities do possess inherent enforcement authority, regardless of the subject matter. OLC Opinion, supra note 54, at 11-13. The opinion uses the example of a Canadian law enforcement officer arresting a non-citizen in Canada for a violation of United States immigration law and says that there is no reason to believe the United States federal government would deprive itself of this assistance. Id. at 3. But this example does not answer the underlying and separate question of the authority of the non-federal officer to arrest for a violation of a law of a separate sovereign.
256. See supra note 10 and accompanying text.
257. Kittrie, supra note 3, at 1477 (citing Michael J. Wishnie, Migration Regulation Goes Local: The Role of the States in U.S. Immigration Policy, 58 N.Y.U. ANN. SURV. AM. L. 283, 291 (2002)).
258. See 8 U.S.C. § 1227(a)(2) (2006) (setting forth deportability grounds, many of which turn on violations of state criminal laws).
259. See supra text accompanying notes 190-195.
260. Not all of the federalism values that I have identified are relevant to this analysis. For example, the value of providing a check on federal power provides less help in determining the legality of the practice. But this is often true. Not every value in federalism is implicated in every assertion of power by a state and local government.
261. See supra Part II.B.1.b-d.
262. See 539 U.S. 396, 419 n.11 (2003) (distinguishing state power over areas of a state's "traditional competence" and federal power over areas affecting foreign policy).
263. Id. This analysis is similar to that in Hines v. Davidowitz, where the Court struck down a state alien registration act as preempted by a similar federal provision. 312 U.S. 52, 65-68 (1941). There, the Court acknowledged that the state may have possessed some authority to enact the provision absent federal action, id. at 66, but found that a state action that affected national interests might cross the line into impermissible state regulation, id. at 62-68. This balancing of state and national interests both would be constitutionally familiar and would better address the underlying concerns in the field of immigration. Such balancing would speak to both structural concerns regarding the appropriate balance of power between the national and sub-national levels of government, and the need to protect individual rights.
264. See DeCanas v. Bica, 424 U.S. 351, 355 (1976) ("[T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain."). Assuming the provision does not concern immigration as narrowly defined, the only question is whether the state or local law is preempted by federal law. See Hines, 312 U.S. at 65-68 (finding that the validity of the state alien registration statute turned on whether it was preempted by a similar provision in federal law).
265. DeCanas, 424 U.S. at 355-56.
266. This was the state provision the Court upheld in DeCanas, which the Court found to present only a "purely speculative and indirect impact on immigration." Id. at 355.
267. See supra text accompanying notes 1, 61.
268. I refer here only to federal immigration laws and do not determine whether other federal laws, such as the Fair Housing Act, may preempt these local ordinances. See 42 U.S.C. §§ 3604-06 (2000) (prohibiting discrimination by national origin in real estate rental, sales, or brokerage practices).
269. See 8 U.S.C. § 1182(a)(6)(A) (declaring generally "inadmissible" any alien who enters the United States "at any time or place other than as designated by the Attorney General"); id. § 1227(a)(1)(B) (declaring deportable any alien who is present in the United States illegally, any alien whose visa has been revoked, and any alien who has overstayed a legal visa).
270. A contrary view could be found in the reasoning of Plyler v. Doe, which acknowledged the reality of the presence of a sizeable class of unauthorized migrants and expressed concern that this class was only growing over time. 457 U.S. 202, 218-19 (1982).
271. The heightened standard of judicial review under the Equal Protection Clause would not apply here, because that standard is used only for laws affecting non-citizens lawfully in the country. See supra Part I.A (discussing different degrees of scrutiny courts use in reviewing distinctions based on alienage). Thus, if a state or locality chose to enact a similar law affecting lawful non-citizens, the analysis would differ significantly.
272. See supra notes 180-181 (describing difficulties for employers in Colorado after the state passed anti-immigrant measures; also describing economic downturn experienced by Riverside, New Jersey, after it enacted anti-immigrant legislation, leading the town to repeal the legislation).
273. See Jennifer Steinhauer, California Plan for Health Care Would Cover All, N.Y. TIMES, Jan. 9, 2007, at A1 (describing a bill introduced by Governor Schwarzenegger that would guarantee health care coverage to California's thirty-six million residents, including one million uninsured unauthorized migrants). The proposal was later voted down by a state Senate committee, partly for budgetary reasons.
274. See Jesse McKinley & Kevin Sack, California Senate Panel Rejects Health Coverage Proposal, N.Y. TIMES, Jan. 29, 2007, at A14.
275. See Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1370-72 (2006) (discussing the danger of the "spillover" effect of a state law that "shifts costs and favors its own citizens while disproportionately affecting out-of-state interests"). Whether this decisionmaking should be devolved to the local level is another matter. Under the steam valve rationale, permitting smaller units of government to express anti-immigrant hostility may take the pressure off larger units of government. Spiro, supra note 6, at 1628-46. But the potential for these local governments to affect other localities adversely, particularly nearby, is great.
276. Cf. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 394-404 (1978) (describing the difficulty of judicial resolution of "polycentric" disputes).
277. See Gregory v. Ashcroft, 501 U.S. 452, 457-64 (1991) (applying federalism principles in assessment of state law concerning mandatory retirement for judges); Louis Henkin, Infallibility Under Law: Constitutional Balancing, 78 COLUM. L. REV. 1022, 1047 (1978) (describing constitutional balancing tests as posing some concerns, but also arguing that they "provide[] an answer, or the way to an answer - sometimes the only answer - to what the Constitution means when the words do not say what it means, to many a constitutional tension or issue not readily resolved without it," and that "[t]he flexibility it provides may have been an important ingredient in making judicial review work and rendering it acceptable");
278. see also Erwin Chemerinsky, More Is Not Less: A Rejoinder to Professor Marshall, 80 NW. U. L. REV. 571, 572-73 (1985) ("[T]he fact that there are not easy solutions or determinate answers does not explain why [balancing] is undesirable . . . . [C]ourts constantly choose between competing values in situations where no easy or determinate answers exist . . . . Upholding equality inevitably sacrifices liberty; ending discrimination eliminates someone's liberty to discriminate. The examples are endless; it is difficult to even think of many important constitutional cases in which a difficult value conflict does not exist.");
279. cf. Paul Schiff Berman, Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to "Private" Regulation, 71 U. COLO. L. REV. 1263, 1307-08 (2000) ("[A]lthough it is certainly possible to criticize the use of balancing tests, such tests have the virtue of permitting courts to articulate essential values and principles while at the same time recognizing that applying these principles must necessarily depend on a nuanced examination of the circumstances of each case. As discussed previously, courts are educative and expressive institutions as well as adjudicative bodies; therefore articulating foundational principles can be as important as providing a fixed resolution to possible future cases.").
280. If the federal government has not used the Supremacy Clause to override state and local conduct, it is far from clear that federal policies should prevail. RAMSEY, supra note 85, at 285-86 (describing the role of the Supremacy Clause not only in enhancing federal power but also in protecting state power by limiting federal supremacy to, inter alia, laws duly enacted).
281. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (holding that there is no presumption of federal exclusivity "in a field which the states have traditionally occupied").
282. Id. ("[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.").
283. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203-04 (1983) (holding that, in the absence of explicit intent, courts may infer preemptive intent from the presence of extensive federal regulation).
284. Id.; Santa Fe Elevator Corp., 331 U.S. at 230.
285. Pac. Gas, 461 U.S. at 203-04; see also Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991) ("Even when Congress has not chosen to occupy a particular field, pre-emption may occur to the extent that state and federal law actually conflict.").
286. See United States v. Locke, 529 U.S. 89, 108 (2000) (noting that there is no assumption against preemption when states regulate in areas with "a history of significant federal presence"); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-31, at 1210 (3d ed. 2000) ("If the area is deemed 'national,' the Court is more vigilant in striking down what would amount to state incursions into subjects that Congress may have validly reserved to itself.").
287. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 419-20 (2006) (finding that the Court need not resolve whether the doctrine of field preemption should apply to foreign affairs, instead noting that the doctrines of field and conflict preemption may complement each other).
288. TRIBE, supra note 241, § 6-28, at 1172-73.
289. Id.
290. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 62-69, 72-74 (1941) (finding that the federal Alien Registration Act preempted a Pennsylvania statute requiring the registration of aliens).
291. Id. at 66 (quoting Gibbons v. Ogden, 22 U.S. 1, 211 (1824)).
292. See id. at 69-74 (reviewing extensive reach of federal immigration law in areas in which Pennsylvania law attempted to regulate).
293. 539 U.S. 396, 419-20.
294. Id. at 419 n.11.
295. Id. Applying this understanding retrospectively elucidates the reasoning in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). In that case, Massachusetts had enacted a law restricting state agencies from purchasing goods or services from companies that conducted business with Myanmar. Id. at 370-71. The Court struck down the law because it conflicted with federal law. See id. at 372-74 (finding the state law preempted, thus declining to decide whether field preemption applies to foreign affairs). Although the Court did not reach the distinction between field and conflict preemption, it did note that Massachusetts was inserting itself directly into the debate over the proper treatment of Myanmar, instituting a "state system of economic pressure against the Burmese political regime." Id. at 376. Massachusetts was not, in other words, acting within an area of traditional state competence.