Sub-national immigration regulation and the pursuit of cultural cohesion

University of Cincinnati Law Review

Volumn 77, Issue 4, 2009, Pages 1441-1497

  Gulasekaram, Pratheepan ^a  

^a SANTA CLARA UNIVERSITY   (United States)

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EID: 69249177085     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (307)

1. Comprehensive Immigration Reform: Examining the Need for a Guest Worker Program: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 11-13 (2006) (statement of Hon. Louis Barletta, Mayor, City of Hazelton, Pa.).
2. Fighting the Fence: Texans and Owls Take on the Federal Government, ECONOMIST, June 14, 2008, at 42, available at http://www.economist.com/world/unitedstates/displaystory.cfm7story-Id=11553857 ("'There's a misconception in mid-America that Mexico is overrunning the borders,' says [Mayor Chad Foster]. He suggests that the rest of America fence their own communities if they feel insecure.").
3. David Martin, Texas Mayors Oppose Plan for Border Fence, NPR.ORG, Oct. 16, 2007, http://www.npr.org/templates/story/story.php? storyId=15315131. Please note that throughout this article I will refer to undocumented persons as neither "illegal" nor "aliens." The term "alien" carries pejorative connotations that emphasize the strange foreignness of individuals who may have significant ties to the communities in which they reside. See Gerald M. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, 1977 SUP. CT. REV. 275, 303 (1977).
4. Douglas S. Massey, International Migration at the Dawn of the Twenty-First Century: The Role of the State, 25 POPULATION & DEV. REV. 303, 314 (1999) ("Faced with mounting public pressure to control immigration... politicians in many developed countries have turned increasingly to symbolic policy instruments to create an appearance of control....").
5. WAYNE A. CORNELIUS ET AL., IMMIGRATION POL'Y CTR., CONTROLLING UNAUTHORIZED IMMIGRATION FROM MEXICO: THE FAILURE OF "PREVENTION THROUGH DETERRENCE" AND THE NEED FOR COMPREHENSIVE REFORM 2-5 (2008), http://www.immigrationpolicy. org/images/File/misc/CCISbriefing061008.pdf.
6. Living Together: El Paso, ECONOMIST, June 28, 2008, at 39, available at http://www.economist.com/world/unitedstates/ displaystory.cfm?story-id=l 1637349.
7. See, e.g., Sean D. Hamill, Altoona, With No Immigrant Problem, Decides to Solve It, N.Y. TIMES, Dec. 7, 2006, at A34, available at http://www.nytimes.com/2006/12/07/us/07altoona.html7scp=ll&sq= hazleton&st=nyt ("When places like Altoona pass such laws, it is a sign of growing frustration with the federal government's lack of immigration enforcement, said Ira Mehlman, spokesman for the Federation for American Immigration Reform."); Jon Hurdle, Judge Strikes Down Town's Immigration Law, N.Y. TIMES, July 26, 2007, at A14, available at http://www.nytimes.com/2007/07/26/us/26cnd-hazleton.html?scp=2&sq= hazleton%20ordinance&st=cse;
8. Carl Hulse, Effort to Pass Immigration Bill Collapses in Senate, N.Y. TIMES, Apr. 7, 2006, available at http://www.nytimes.eom/ 2006/04/07/washington/07cnd-immig.html?scp=47&sq= immigration%20bill%20congress&st=cse;
9. Adam Nagourney, Carl Hulse & Jim Rutenberg, Bush's Immigration Plan Stalled as House G.O.P. Grew Anxious, N.Y. TIMES, June 25, 2006, at Al, available at http://www.nytimes.com/2006/06/25/washington/ 25bush.html?scp=l&sq= Bush%E2%80%99s%20Immigration%20Plan%20Stalled%20as%20House% 20G.O.P. %20Grew%20Anxious&st=cse. The Hazleton City Council passed its Illegal Immigration Relief Act ordinance which penalizes businesses for hiring undocumented workers and landlords for renting rooms to them in July 2006. Hurdle, supra. In response to the federal judge's rule that the ordinance was illegal, Hazleton's mayor, Mr. Barletta stated that the fight was to "make Hazleton the toughest city in America for illegal immigrants" and he "will not sit back because the federal government has refused to do its job." Id.
10. See, e.g., Alex Kotlowitz, Our Town, N.Y. TIMES MAGAZINE, Aug. 5, 2007, at 32-33 (noting that over the past 2 years, "more than 40 local and state governments have passed ordinances and legislation aimed at making life miserable for illegal immigrants in the hope that they'll have no choice but to return to their countries of origin," and that the individuals were elected to the Carpentersville, IL board to help the city "do everything in its power to discourage illegal immigrants from settling there").
11. See, e.g., NAT'L CONFERENCE OF STATE LEGISLATURES, OVERVIEW OF STATE LEGISLATION RELATED TO IMMIGRANTS AND IMMIGRATION JANUARY-MARCH 2008, at 1 (2008), http://www.ncsl.org/print/ immig/immigreportapril2008.pdf (noting that as of the end of 2007, state legislatures had introduced over 1, 169 pieces of legislation, tripling the number introduced in 2006).
12. See, e.g., Hazleton, Pa., Ordinance 2006-18 (Sept. 8, 2006). See also Valley Park, Mo., Ordinance 1715 (Sept. 26, 2006), available at http://www.aclu.org/pdfs/immigrants/valleypark-amendedordinance.pdf;
13. Hazleton, Pa., Ordinance 2006-40 (Dec. 26, 2006), available at http://www.aclu.org/pdfs/immigrants/hazleton-thirdordinance.pdf;
14. Farmers Branch, Tx., Ordinance 2892 (Jan. 2, 2007), available at http://www.aclu.org/pdfs/immigrants/farmersbranch-ordinance.pdf;
15. H.B. 1804, 51st Leg., 1st Reg. Sess. (Okla.2007).
16. See, e.g., H.B. 1804, 51st Leg., 1st Reg. Sess. (Okla. 2007) (terminating, inter alia, public assistance with exceptions for emergency care).
17. See, e.g., GA. CODE ANN § 42-4-14, (2008);
18. OKLA. STAT. ANN. tit. 22, § 171.2 (West 2008) ("When a person charged with a felony or with driving under the influence... is confined... a reasonable effort shall be made to determine the citizenship status of the person so confined."); H.B. 2582, 47th Leg., 2d Reg. Sess. (Ariz. 2006), available at http://www.azleg.gov/legtext/471eg/ 2r/bills/hb2 582h.htm (authorizing peace officers to "investigate, apprehend, detain or remove aliens").
19. See, e.g., H.B. 366, 59th Leg., 2d Reg. Sess. (Idaho 2008) (prohibiting the issuance of a driver's license to undocumented persons).
20. Mary Beth Marklein, Illegal Immigrants Face Threats of No College, USATODAY.COM, July 7, 2008, http://www.usatoday.com/news/education/ 2008-07-06-Illegaled-N.htm ("In the past two years, Arizona, Colorado, Georgia and Oklahoma have refused in-state tuition benefits to students who entered the USA illegally with their parents but grew up and went to school in the state.... This summer, South Carolina became the first state to bar undocumented students from all public colleges and universities. North Carolina's community colleges in May ordered its 58 campuses to stop enrolling undocumented students after the state attorney general said admitting them may violate federal law."); see, e.g, S.C. Res. 1031, 47th Leg., 2d Reg. Sess. (Ariz. 2006), available at http://www.azleg.gov/legtext/471eg/2r/ bills/scrl031h.pdf.
21. See, e.g., H.B. 2779, 48th Leg., 1st Reg. Sess. (Ariz. 2007) (prohibiting the hiring of undocumented workers and sanctioning employers for doing so).
22. See, e.g., CAL. CONST, art III, § 6(b) (1986) (requiring English to be the "language of instruction" in CA schools and constitutionality affirmed by Cal. Teachers Assoc, v. Davis, 64 F. Supp. 2d 945 (CD. Cal. 1999) (finding that the limitation of only "instruction" in English did not chill speech or restrict liberty of students and teachers)); GA. CODE ANN. § 50-3-100 (West 2006).
23. Estimates put the number of undocumented immigrants in the country at 11 million as of March 2005. JEFFREY S. PASSEL, PEW HISPANIC CTR., ESTIMATES OF THE SIZE AND CHARACTERISTICS OF THE UNDOCUMENTED POPULATION 1 (2005), http://pewhispanic.org/files/reports/44.pdf.
24. See, e.g., Chy Lung v. Freeman, 92 U.S. 275 (1875).
25. See generally ABRAHAM HOFFMAN, UNWANTED MEXICAN AMERICANS IN THE GREAT DEPRESSION: REPATRIATION PRESSURES, 1929-1939 (1974);
26. Kitty Calavita, The New Politics of Immigration: "Balanced-Budget Conservatism" and the Symbolism of Proposition 187, 43 SOCIAL PROBLEMS 284, 284-85 (1996).
27. See, e.g., Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787 (2008);
28. Cristina M. Rodriguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008);
29. Peter H. Schuck, Taking Immigration Federalism Seriously, 2007U.CHI. LEGALF. 57.
30. See Huntington, supra note 20 (examining the constitutionality of sub-federal legislation); Rodriguez, supra note 20 (arguing that localities play an important role in integrating immigrants, and therefore should be afforded latitude to legislate); Schuck, supra note 20 (arguing that allowing sub-national entities to regulate immigration has not led to an anticipated race to the bottom).
31. Stephen R. Perry, Immigration, Justice, and Culture, in JUSTICE IN IMMIGRATION 94, 110-25 (Warren F. Schwartz ed., 1995);
32. MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 38-40 (1983). Indeed, early national immigration policy was expressly based on the notion of preserving cultural homogeneity by excluding non-Anglo, non-Protestant, and non-English-speaking foreigners. Kevin R. Johnson & Bill Ong Hing, National Identity in a Multicultural Nation: The Challenge of Immigration Law and Immigrants, 103 MICH. L. REV. 1347, 1383-85 (2005).
33. See generally Tamar Jacoby, Immigration Nation, FOREIGN AFF., Nov.-Dec. 2006, at 65;
34. Kevin R. Johnson, Open Borders?, 51 UCLA L. REV. 193 (2004);
35. Kevin R. Johnson, Protecting National Security Through More Liberal Admission of Immigrants, 2007 U. CHI. LEGAL F. 157;
36. Perry, supra note 22, at 110-25.
37. WALZER, supra note 22, at 39 (stating that a "sovereign state must take shape and claim the authority to make its own admissions policy, to control and sometimes restrain the flow of immigrants," but also proscribing majoritarian decisions on immoral basis, and requiring sovereignties to aid necessitous strangers).
38. Id. at 39.
39. Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893);
40. Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609 (1889) ("The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.").
41. See supra note 26.
42. Richard T. Ford, City-States and Citizenship, in CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 209, 210-11 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2001);
43. Alan O. Sykes, The Welfare Economics of Immigration Law: A Theoretical Survey with an Analysis of U.S. Policy, in JUSTICE IN IMMIGRATION, supra note 22, at 158, 158-68.
44. SASKIA SASSEN, LOSING CONTROL?: SOVEREIGNTY IN AN AGE OF GLOBALIZATION 59-99 (1996);
45. Adeno Addis, The Thin State in Thick Giobalism: Sovereignty in the Information Age, 37 VAND. J. TRANSNAT'L L. 1, 68-70 (2004).
46. Jaya Ramji-Nogales, A Global Approach to Secret Evidence: How Human Rights Law Can Reform Our Immigration System, 39 COLUM. HUM. RTS. L. REV. 287, 324-44 (2008);
47. see also LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP 25 (2006) ("While nation-states continue to define the nature and scope of most rights, as well as to enforce them, states can no longer be said to be the sole source of existing positive rights. As is well known, the international human rights regimes that developed in the post-World War II period were designed to implement supranational standards for the treatment of individuals by states.").
48. Seyla Benhabib, Political Theory and Political Membership in a Changing World, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE 404, 406-07 (Ira Katznelson & Helen V. Milner eds., 2002) ("[T]he state-centric system of the nineteenth and early twentieth centuries-is, if not at an end, at a minimum undergoing a deep reconfiguration."). More recent Supreme Court decisions still rely on conceptions of sovereign power first articulated over 130 years ago, prior to the advent of electronic communication, international institutions, rapid travel, and trans-national human rights norms. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citing Chae Chan Ping v. United States, 130 U.S. 581 (1889)).
49. WALZER, supra note 22, at 39 ("The distinctiveness of cultures and groups depends upon closure and, without it, cannot be conceived as a stable feature of human life. If this distinctiveness is a value, as most people (though some of them are global pluralists, and others only local loyalists) seem to believe, then closure must be permitted somewhere. At some level of political organization, something like the sovereign state must take shape and claim the authority to make its own admissions policy, to control and sometimes restrain the flow of immigrants.").
50. Id. at 62 ("Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life." (emphasis omitted)).
51. Perry, supra note 22, at 113-14 ("a certain degree of cultural stability and cohesiveness is necessary to preserve either general social and political stability or the liberal/democratic character of existing political institutions");
52. see also Johnson & Hing, supra note 22, at 1390 ("We recognize that even a multicultural society must share a core of values in order to provide a means to live together as a society. Without a commitment to a common core, balkanization into assorted factions is likely and eliminating interethnic violence and tension will prove more difficult.").
53. See Perry, supra note 22, at 114.
54. THE FEDERALIST NO. 2, at 32 (John Jay) (Clinton Rossiter ed., 1999).
55. I am not defending a static understanding of culture that limits cultural definition to these identities. I discuss them throughout the Article because they map current political and legal understandings of the constituent parts of culture. Under any definition of culture, however, it is likely true that these identities significantly inform the ways in which individuals comprehend and interact with the world. Cf. Samuel Scheffler, Immigration and the Significance of Culture, 35 PHIL. & PUB. AFF. 93 (2007).
56. SEE, E.G., PETER BRIMELOW, ALIEN NATION: COMMON SENSE ABOUT AMERICA'S IMMIGRATION DISASTER (1995);
57. SAMUEL P. HUNTINGTON, WHO ARE WE?: THE CHALLENGES TO AMERICA'S NATIONAL IDENTITY (2004);
58. see also Lauren Gilbert, National Identity and Immigration Policy in the U.S. and the European Union, 14 COLUM. J. EUR. L. 99, 133 (2008) (identifying, without endorsing, scholars who take this view).
59. Perry, supra note 22, at 111.
60. Cf Angel R. Oquendo, National Culture in Post-National Societies, 50 VILL. L. REV. 963, at 972-73 (2005).
61. See, e.g., SAUDI ARABIA CONST, arts. 9, 13, 34.
62. U.S. CONST, pmbl.
63. U.S. CONST, amend. I.
64. Marbury v. Madison, 5 U.S. (Cranch) 137 (1803) (declaring an act of Congress void); Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333 (1998).
65. Frederick Schauer, Community, Citizenship, and the Search for National Identity, 84 MICH. L. REV. 1504, 1517 (1986) ("In preferring some, we of course do not prefer others, and it is in a way sad and in a way paradoxical that we hold ourselves together by fencing others out. But that it is sad and paradoxical does not make the phenomenon less real.").
66. T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 CONST. COMMENT. 9(1990).
67. Id. at 28.
68. See Ayelet Shachar, The Worth of Citizenship in an Unequal World, 8 THEORETICAL INQUIRIES L. 367, 370 (2007) (arguing that opportunities and rights flowing from national citizenship gained through birth are like "inherited property" and that citizens in wealthy countries have an obligation to those born in other states).
69. Perry, supra note 22, at 104.
70. Of note, and for the sake of completeness, Perry also presents another plausible justification for exclusion based on a shared culture's ability to promote individual autonomy by providing structure and context for individual flourishing. Id. at 115-17. In this conception, the state's exclusionary power should be used to facilitate the autonomy and expressive needs of incumbent members. See also WILL KYMLICKA, LIBERALISM, COMMUNITY AND CULTURE 163-66 (1989). This justification could also find support within our constitutional order. U.S. CONST, amend. I. However, it does not merit further discussion here because each individual will have varying thresholds for the level of cultural homogeneity he or she requires for his or her autonomous expression. It does not aid in elucidating the limits of exclusionary legislation.
71. See Perry, supra note 22, at 114.
72. U.S. CONST, pmbl. ("to form a more perfect union").
73. Perry, supra note 22, at 115.
74. Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495 (2001).
75. Scheffler, supra note 37.
76. Id. at 107 ("Strong preservationism fails as a strategy.. .because it fails to recognize that change is essential to culture and to cultural survival, so that to prevent a culture from changing... would not be to preserve the culture but rather to destroy it. In other words, strong preservationism is self-defeating.").
77. WALZER, supra note 22, at 39 ("Neighborhoods might maintain some cohesive culture for a generation or two on a voluntary basis, but people would move in, people would move out; soon cohesion would be gone.").
78. Jan Hilgevoord & Jos Uffink, The Uncertainty Principle, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2006), available at http://plato.stanford.edu/archives/fall2006/ entrie s/qt-uncertainty/.
79. Scheffler, supra note 37, at 104.
80. WALZER, supra note 22, at 34 ("But it is worth noting first, briefly, that there are certain similarities between strangers in political space (immigrants) and descendants in time (children).").
81. Sunder, supra note 54, at 498.
82. See, e.g., Johnson & Hing, supra note 22, at 1350 ("[Immigration is a function of economic, social, and political pressures that are not wholly within any one nation's sovereign control. Closed borders simply are not a policy option in the United States today.").
83. See CORNELIUS, ET AL., supra note 5; RAQUEL RUBIO-GOLDSMITH, ET. AL., IMMIGRATION POL'Y CTR., A HUMANITARIAN CRISIS AT THE BORDER: NEW ESTIMATES OF DEATH AMONG UNAUTHORIZED IMMIGRANTS 2-4 (2007), http://immigration. server263.conVimages/FileÆrief/Crisis%2 0at%20the%20Border.pdf.
84. Howard F. Chang, Cultural Communities in a Global Labor Market: Immigration Restrictions as Residential Segregation, 2007 U. CHI. LEGAL. F. 93, 96;
85. David M. Kennedy, Can We Still Afford to Be a Nation of Immigrants?, ATLANTIC MONTHLY, Nov. 1996, at 52, available at http://www.theatlantic.com/doc/199611/immigration.
86. Julia Preston, Reduction Seen in Number of People Here Illegally, N.Y. TIMES, Jul. 31, 2008, at A14 ("The [conclusion that strong immigration enforcement caused the decline was] questioned by other demographers and economists, who said the decline might be less than... reported and was more likely the result of the weak economy, especially in low-wage construction and manufacturing where illegal immigrants are generally employed.").
87. PEW HISPANIC CTR., NO CONSENSUS ON IMMIGRATION PROBLEM OR PROPOSED FIXES: AMERICA'S IMMIGRATION QUANDARY 26-33 (2006), http://pewhispanic.org/files/reports/63.pdf.
88. MIGRATION POL'Y INST., ANNUAL IMMIGRATION TO THE UNITED STATES: THE REAL NUMBERS 1 (2007), http://www. migrationpolicy.org/pubs/FS16-USImmigration-051807.pdf.
89. 8U.S.C.§ 1151 (2006).
90. Pierce v. Society of Sisters, 268 U.S. 510 (1925).
91. Perry, supra note 22, at 114.
92. See, e.g., Gilbert, supra note 38, at 136 (noting scholarly literature arguing that the U.S. has an "immigration" policy, but no "immigrant" policy for integration).
93. Perry, supra note 22, at 104.
94. WALZER, supra note 22, at 40. There are nations that use racial or ethnic criteria for membership within the political community, or as a marker of a distinct political community. For example, membership in Greece is heavily dependent on Greek descent, with limited opportunities for non-Greeks to achieve the same. See Kodikas Ellenikes Ithageneias [KEI] [Code of Greek Citizenship] (Greece), available at http://www.mfa.gr/www.mfa.gr/ AuthoritiesAbroad/North+America/USA/EmbassyWashington/en-US/C onsular+Services/Citizenship+-+Passports/Greek+Nationality/. The Republic of Korea until recently, mandated that social science books teach that all Koreans were united by one-blood without mixture of other ethnicities. This notion of ethnic purity and superiority has recently come under revision in Korea due to the effects of globalization, which has brought spouses from many neighboring countries into familial and blood ties with its native citizens. Korea's response to increased and varied immigration has thus far been to modify its sponsorship of the myth of national racial distinctiveness, rather than create closed sub-national communities. See All Things Considered: South Korea Tackles Multicuituralism (NPR broadcast June 23, 2008), available at http://www.npr.org/templates/story/story.php7storyId=91819092.
95. Chang, supra note 64, at 128 n.129;
96. Karla M. McKanders, From "Coloreds Only" to "Soìamente Ingles, " the Movement to Dismantle Second Class Citizenship for Jim Crow Blacks and Juan Crow Browns (forthcoming) (on file with author).
97. THE FEDERALIST NO. 2, supra note 36.
98. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 8-17 (2004) (discussing Jim Crow laws);
99. Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993).
100. Brown v. Bd. of Educ, 347 U.S. 483 (1954) supplemented by Brown v. Bd. of Educ. 349 U.S. 294(1955).
101. See id.
102. U.S. CONST, amend. XXIV.
103. 388 U.S. 1(1967).
104. See id.
105. Shelley v. Kraemer, 334 U.S. 1 (1948).
106. See id.
107. DOLORES HAYDEN, BUILDING SUBURBIA: GREEN FIELDS AND URBAN GROWTH, 1820-2000, at 283 (2003).
108. Chang, supra note 64, at 112-13 (citing David M. Cutler & Edward L. Glaesser, Are Ghettos Good or Bad?, 112 Q. J. ECON. 827 (1997), and Abraham Bell & Gideon Parchomovsky, The Integration Game, 100 COLUM L. REV. 1965, 1966 (2000)). But see Eric Klinenberg, Bourgeois Dystopias, NATION, June 28, 2004, at 40 ("The majority of new immigrants, and increasing numbers of African-Americans, gays and the poor, are settling down outside the city lines.").
109. James v. Valtierra, 402 U.S. 137 (1971) (finding no equal protection violation in a California referendum procedure allowing majoritarian control over public-housing regulations that use wealth classifications, as wealth is not a suspect classification and the California procedure did not target racial minorities per se).
110. Kennedy, supra note 64, at 66.
111. PEW HISPANIC CTR., STATISTICAL PORTRAIT OF THE FOREIGN-BORN POPULATION IN THE UNITED STATES, 2006 tbl.6 (2008), http://pewhispanic.org/fIles/factsheets/foreignbom2()06/rable-6.pdf.
112. Washington v. Davis, 426 U.S. 229 (1976) (holding that a disparate racial effect was insufficient to constitute an equal protection claim under the 14th Amendment to the Constitution).
113. See George A. Martinez, Race and Immigration Law: A Paradigm Shift?, 2000 U. ILL. L. REV. 517 (assessing treatment of race in immigration literature).
114. Gomillion v. Lightfoot, 364 U.S. 339 (1960) (declaring unconstitutional a facially neutral redistricting that led to the elimination of 99% of blacks from a previously mixed electoral district); cf. Yick Wo v. Hopkins, 118 U.S. 356 (1886) (declaring unconstitutional a facially race-neutral regulation of laundries because regulation was used to almost exclusively prosecute Chinese-owned laundries).
115. Ryan Gabrielson & Paul Giblin, Sweeps Break the Rules, EAST VALLEY TRIBUNE (Mesa, Ariz.), Jul. 11, 2008;
116. Daniel Gonzalez, U.S. Citizens Claim Profiling, Join Lawsuit Against Sheriff Arpaio, AZCENTRAL.COM, Jul. 17, 2008, http://www.azcentral. com/news/articles/2008/07/17/20080717p rofiling0717.html.
117. Saudi Arabia and Iran are two examples of countries with strict religious requirements for membership. See, e.g., SAUDI ARABIA CONST, arts. 9, 13, 34.
118. Cf. Scheffler, supra note 37, at 97.
119. U.S. CONST, amend. I.
120. The Moment of Truth: In Many Parts of the World, the Right to Change One's Belief Is Under Threat, ECONOMIST, July 26, 2008, at 29-30 ("The promotion of religious liberty is an axiom of American foreign policy .... But America's religious free-for-all is very much the exception, not the rule, in human history-and increasingly rare ... in the world today.").
121. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (finding no violation of Title VII in a church-run business' refusal to hire outside of its faith); 42 U.S.C. § 2000e-l(a) (2006) (exempting religious organizations from Civil Rights laws, providing in relevant part, "[t]his subchapter shall not apply to... a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities").
122. Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) (ruling that a N.Y. statute creating a school district with its borders contiguous with the village of Kiryas Joel, an enclave for a particular Jewish sect, violated the Establishment Clause because it intended to allow a religious community to exclude outsiders' access to public institutions).
123. Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (ruling that an organization has a First Amendment right of association to deny membership to an individual who undermines the organization's viewpoint).
124. In fact, religious organizations have been the most humane towards migrants in the wake of more visible federal pursuit of undocumented migrants. See Samuel G. Freedman, Immigrants Find Solace After Storm of Arrests, N.Y. TIMES, July 12, 2008, at A9.
125. "Mormon" is the common name for a member of the Church of Jesus Christ of Latter-Day Saints.
126. David E. Campbell & J. Quin Monson, Following the Leader?: Mormon Voting on Ballot Propositions 2 (Notre Dame Univ. Program in Am. Democracy Working Paper Series, Paper No. 16, 2003), available at http://americandemocracy.nd.edu/working-papers/files/following-the-leader.pdf.
127. Id. at 1-3 (noting instances of Mormon voting affecting political outcomes, and specifically detailing Mormon religious leaders' influence of 1968 Utah liquor law). Mormons make up about 80% of Utah's legislature. Bob Bernick, Jr., First Step Toward Change in Liquor Law, DESERET NEWS (Salt Lake City, Utah), May 29, 2008;
128. James T. McHugh, A Liberal Theocracy: Philosophy, Theology, and Utah Constitutional Law, 60 ALB. L. REV. 1515, 1564 (1997);
129. Stephanie Mencimer, Theocracy in America, WASHINGTON MONTHLY, Apr. 2001, at 27. Every member of the congressional delegation was also a LDS member in 2001. Mencimer, supra, at 29. These figures are explained by the large majority of Utahans being members of LDS, and the origin of Utah as a Mormon state after their persecution across the rest of the country. McHugh, supra, at 1546, 1549, 1564. Even Utah's Constitution, while seeming on the surface to be secular, has many hints at work-arounds of church-state separation requirements. Id. at 1516. In 1992, there was an open attempt to break down the barriers between church and state by amending the Utah Constitution to allow prayer before local government meetings. Alfred C. Emory & John J. Flynn, Editorial, Rush to Amend Utah Constitution Invites Divisive Religious Assault, SALT LAKE TRIBUNE, May 11, 1992, at A9. This attempt failed, but was directed at amending the portion of Utah's Constitution that was written specifically to allay fears of a Mormon theocracy becoming part of the United States.
130. See T. ALEXANDER ALEIN1KOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESSES AND POLICY 157-64 (6th ed. 2008);
131. PEW FORUM ON RELIGION & PUB. LIFE, U.S. RELIGIOUS LANDSCAPE SURVEY (2008), http://religions.pewforum.org/pdfreport-religious- landscape-study-fiill.pdf. Mexicans, the largest minority population in the United States, and of whom an estimated 25% are undocumented, are overwhelmingly Catholic. PEW FORUM ON RELIGION AND PUB. LIFE, supra, at 48.
132. Id. at47-51.
133. Norman L. Friedman, Nativism, 28 PHYLON 408 (1967).
134. Muneer I. Ahmad, A Rage Shared by Law: Post-September II Racial Violence as Crimes of Passion, 92 CAL. L. REV. 1259 (2004).
135. Steven A. Camarota, The Muslim Wave, 54 NAT'L REV. 24 (2002), available at http://www.cis.org/articles/2002/ sac830.htm.
136. PEW FORUM ON RELIGION & PUB. LIFE, supra note 104.
137. PEW FORUM ON RELIGION & PUB. LIFE, supra note 104, at 5 ("More than one-quarter of American adults (28%) have left the faith in which they were raised in favor of another religion-or no religion at all. If change in affiliation from one type of Protestantism to another is included, roughly 44% of adults have either switched religious affiliation, moved from being unaffiliated with any religion to being affiliated with a particular faith, or dropped any connection to a specific religious tradition altogether."); id. at 19 ("the number of Americans who are not affiliated with a religion has grown significantly in recent decades").
138. Chang, supra note 64, at 100; Cf. Kwame Anthony Appiah, Cosmopolitan Patriots, 23 CRITICAL INQUIRY 617, 623 (1997).
139. Cristina M. Rodriguez, Language and Participation, 94 CAL. L. REV. 687, 748-51 (2006);
140. see also Kotlowitz, supra note 8 (noting that citizens and long-time Mexican-American residents of the U.S. are feeling targeted by English-only ordinances).
141. Cf. Appiah, supra note 111, at 633 & n.20.
142. U.S. CONST, amend. I; Meyer v. Nebraska, 262 U.S. 390, 396 (1923);
143. Battels v. Iowa, 262 U.S. 404, 409 (1923).
144. See, e.g., ALA. CONST, amend. DIX; CAL. CONST, art. Ill, § 6(b) (1986);
145. GA. CODE ANN. § 50-3-100 (2008) (creating an official English statute, with broad exceptions to avoid Constitutional violations).
146. See, e.g., Kotlowitz, supra note 8.
147. Rodriguez, supra note 112. Of course, a single language would save administrative costs for governmental institutions. Chang, supra note 64, at 104-05.
148. See William Finnegan, The Terrorism Beat: A Reporter at Large, NEW YORKER, Jul. 25, 2005, at 58 (noting the use of Arabic language translators).
149. Appiah, supra note 111, at 633.
150. Rodriguez, supra note 112.
151. Jamie Coomarasamy, Philly Landmark Goes English-only, BBC NEWS, July 2, 2006, http://news.bbc.co.Uk/l/hi/world/americas/5127134. stm.
152. T. Alexander Aleinikoff & Ruben G. Rumbaut, Terms of Belonging: Are Models of Membership Self-Fulfilling Prophecies?, 13 GEO. IMMIGR. L.J. 1, 10-12 (1998) (showing rapid linguistic assimilation of immigrants over time).
153. Id. at 12.
154. I want to note, however, that to conclusively make these arguments, this Article requires empirical work that I do not provide. I do not intend to enter the complex debate regarding the economics of undocumented migration. Instead, I note that some sub-national entities that have enacted these restrictive laws are questioning the wisdom of their policy as their economic base has vanished.
155. Rick Su, A Locaiisl Reading of Local Immigration Regulations, 86 N.C. L. REV. 1619, 1630 & n.33 (2008);
156. Rick Su, Local Fragmentation as Immigration Regulation 11 (June 10, 2009) (unpublished, available at http://papers.ssrn.com/sol3/papers. cŕm?abstract-id=1416107) ("By imposing zoning restrictions that prohibit apartments or multi-family developments, or requirements that impose minimum lot sizes or square-footage, communities have used carefully-crafted zoning policies to drive up housing costs and limit housing selection, with the added consequence of pricing out low and sometimes moderate-income residents.");
157. see also Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
158. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 388-90 (1926).
159. Illegal Immigrant Births-At Your Expense, CBS NEWS, Apr. 7, 2008, http://www.cbsnews.com/stories/2008/04/07/ eveningnews/main4000401.shtml.
160. See Nina Bernstein, Spitzer Grants Illegal Immigrants Easier Access to Driver's Licenses, N.Y. TIMES, Sept. 22, 2007, at Al (noting that N.Y. drivers would save $120 million in insurance premiums by reducing the number of uninsured drivers).
161. While this is likely true for new undocumented migrants who form part of the global labor market in agricultural and meat-packing industries, the same is not true for new migrants (mostly documented or with employment visas) in scientific and technology fields. Vivek Wadhwa et. al., America's New Immigrant Entrepreneurs 4-5 (Duke Science, Technology & Innovation Paper No. 23, 2007), avaliable at http://ssm.com/abstracH990152.
162. See, e.g., Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
163. See infra Part IH.A (discussing states and localities that have chosen not to exclude undocumented persons).
164. See generally Su, supra note 125, at 1649-51 (describing the availability of "neutral" regulations of immigration, such as zoning).
165. James v. Valtierra, 402 U.S. 137 (1971).
166. KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 175 (1985) (citing AMOS H. HAWLEY, THE CHANGING SHAPE OF METROPOLITAN AMERICA: DECONCENTRATION SINCE 1920 (1956));
167. HAYDEN, supra note 84, at 10.
168. Kotlowitz, supra note 8.
169. See, e.g., Chang, supra note 64, at 93-94;
170. Jacoby, supra note 23, at 50;
171. FISCAL POL'Y INST., A PROFILE OF IMMIGRANTS IN THE NEW YORK STATE ECONOMY (2007), http://www.fiscalpolicy.org/publications2007/FPI- ImmReport-WorkingforaBetterLife.pdf;
172. CAROLE KEETON STRAYHORN, TEXAS COMPTROLLER, UNDOCUMENTED IMMIGRANTS IN TEXAS: A FINANCIAL ANALYSIS OF THE IMPACT TO THE SATE BUDGET AND ECONOMY (2006), http://www.window.state.tx.iis/specialrptΛIndocumented.
173. Chang, supra note 64, at 94;
174. see also Jonathan Todres, Lessons from the Trade Arena: A Proposal to Change U.S. Immigration Law for the Benefit of U.S. Workers, 1 SAN DIEGO INT'L L.J. 49, 65 (2000).
175. See Jacoby, supra note 23, at 54-58 (noting that $7 billion in tax revenue and $ 154 billion in economic growth was attributable to undocumented persons).
176. Id.
177. Id.
178. STRAYHORN, supra note 136, at 1-2.
179. See supra notes 9-15 and accompanying text.
180. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 521-29 (M.D. Pa. 2007).
181. Ken Belson & Jill P. Capuzzo, Towns Rethink Law Against Illegal Immigrants, N.Y. TIMES, Sept. 26, 2007, at Al;
182. Maria Panaritis & Sam Wood, Riverside To Repeal Immigrant Laws, PHILADELPHIA INQUIRER, Aug. 23, 2007, at B1.
183. Belson & Capuzzo, supra note 144.
184. Id.
185. Mick Hinton, GOP Senator Wants Part of Law Repealed, TULSA WORLD, Dec. 5, 2007, at Al, αvα;7αŵ/eαřhttp://www.tulsaworld.com/news/ article.aspx?articleID=071205-l-Al-hGOPs73808.
186. See, e.g., Nick Miroff, Citing Cost, Prince William Delays Immigrant Measures, WASH. POST, Oct. 3, 2007, at Al.
187. They constitute a non-negligible part of the national economy. See generally Jacoby, supra note 23, at 55-59.
188. See, e.g., Kotlowitz, supra note 8, at 37 (describing the reaction of Mexican-American U.S. citizens to a political flyer targeting undocumented immigrants, stating "[w]hat so alarmed them is that it felt less like a debate on illegal immigration than it did a condemnation of Hispanic culture").
189. ALEINIKOFF, ET AL., supra note 104, at 689-722 (providing basis for deportation,); Foley v. Connelie, 435 U.S. 291 (1978) (allowing a state to exclude non-citizens from serving as state police).
190. HIROSHIMOTOMURA, AMERICANS IN WAITING (2006) (arguing that the U.S. should return to a conception of legal permanent residents as "Americans in Waiting" where they are afforded membership rights similar to national citizens).
191. MICHAEL E. FIX & WENDY ZIMMERMAN, URBAN INST., ALL UNDER ONE ROOF: MIXED-STATUS FAMILIES IN AN ERA OF REFORM (1999), http://www.urban.org/ UploadedPDF/409100.pdf.
192. Krissah Williams, Labor Groups, Business Seek Immigration Law Overhaul, WASH. POST, Jan. 20, 2007, at Dl ("Worried that surprise raids are driving away workers who are their lifeblood, businesses are pooling their money and joining unusually broad alliances that include labor unions and civil rights groups to push Congress to overhaul the nation's immigration laws.").
193. Compare Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 521-29 (M.D. Pa. 2007) (striking down ordinance), with Gray v. City of Valley Park, No. 4:07-CV-00881, 2008 WL 294294, at * 18-19 (E.D. Mo. 2008) (upholding ordinance);
194. see also Julia Preston, In Reversal, Courts Uphold Local Immigration Laws, N.Y. TIMES, Feb. 10, 2008, at A22.
195. See U.S. CONST, art. I, § 8.
196. U.S. CONST, art. IV, cl. 2.
197. STEPHEN H. LEGOMSKY, IMMIGRATION AND THE JUDICIARY: LAW AND POLITICS IN BRITAIN AND AMERICA 42-73 (1987).
198. ALEINIKOFF ET AL., supra note 104, at 163-76.
199. Id.
200. KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION, AND THE I.N.S.(1992).
201. Leti Volpp, The Culture of Citizenship, 8 THEORETICAL INQUIRIES L. 571, 580-81 (2007) ("[Although we remember exclusions as having been status-based, they were in fact premised upon assumptions about normative behavior.").
202. See Frank H. Wu, The Limits of Borders: A Moderate Proposal for Immigration Reform, 7 STAN. L. & POL'Y REV. 35, 43 (1996). But see Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 549 (1990) (arguing that phantom norms and interpretation avoiding constitutional holdings have allowed the Supreme Court to avoid some excesses of the plenary power doctrine). I am not arguing that such an attempt is likely or would be successful. As Dean Kevin Johnson and Professor Bill Ong Hing note, "in light of the modern civil rights consciousness... blanket prohibitions on the immigration of certain races or national origins [are not] generally viable." Johnson & Hing, supra note 22, at 1350. Even so, a consequence of the plenary power doctrine is nearly unfettered, unchecked decision-making power in the hands of the political branches. Presumably our evolved consciousness, economic deterrents, and foreign policy reprisals would prevent such a return. But, these are prudential cautions, not constitutional constraints on sovereign power.
203. David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 STAN. L. REV. 1069, 1070-73 (1979).
204. Ford, supra note 28, at 210 ("[NJational citizenship[ is] under attack, not from one, but from two opposite vectors: one toward multinational and global affiliations that transcend the nation-state, and one toward subnational, regional, and local affiliations that fracture the nation-state.");
205. see also Yishai Blank, Spheres of Citizenship, 8 THEORETICAL INQUIRIES L. 411 (2007) (arguing that both local and international realms of membership are gaining importance vis-à-vis the national sphere).
206. BOSNIAK, supra note 30, at 18-36;
207. Ford, supra note 28, at 218 ("The residents of global cities, however, have cultural and economic ties to the global village that can be as strong as their ties to their national capitals.").
208. Cf. WALZER, supra note 22, at 31 ("The primary good that we distribute to one another is membership in some human community.").
209. Saskia Sassen, The Repositioning of Citizenship: Emergent Subjects and Spaces for Politics, CENTENNIAL REV., Summer 2003, at 57-58;
210. Kristine Crane, The City as an Arena for the Expression of Multiple Identities in the Age of Globalisation and Migration, (FEEM Working Paper No, 73, 2003), available at http://papers.ssrn.com/sol3/papers. cím?abstract-Λ/=463381.
211. See generally Chang, supra note 64;
212. Ford, supra note 28.
213. BILL BISHOP, THE BIG SORT (2008) (noting increase in "landslide" counties during election time and positing that the polarization of politics is due to a movement of people into like-minded communities resulting in more radicalized beliefs and political views); Kathleen Sullivan, From States' Rights Blues to Blue States' Rights: Federalism After the Rehnquist Court, 75 FORDHAM L. REV. 799 (2006).
214. See sources cited supra notes 164, 165.
215. Ford, supra note 28, at 218-24;
216. Ramji-Nogales, supra note 30, at 324-44. But see T. Alexander Aleinikoff, Between National and Post-National: Membership in the United States, 4 MICH. Ĵ. RACE & L. 241 (1999) (arguing that notions of post-national membership are premature).
217. "Inaction" itself is a temporally limited description. Although Congress failed to come to new legislation in 2006, the federal government has acted comprehensively in regards to immigration in the past. See 8 U.S.C. § 1001 (2006);
218. ALEINIKOFF, ET AL., supra note 104.
219. See PEW HISPANIC CTR., supra note 66.
220. Christian Joppke, Why Liberal States Accept Unwanted Immigration, 50 WORLD POL. 266, 273-74 (1998).
221. Ford, supra note 28, at 217 ("[MĻajor cities are cultural and political bases for ethnic subgroups and minorities that are too small to gain significant power at the national level.").
222. Id.
223. see also Sassen, supra note 168, at 57 ("The loss of power at the national level produces the possibility for new forms of power and politics at the subnational level. The national as container of social process and power is cracked. This cracked casing opens up possibilities for a geography of politics that links subnational spaces. Cities are foremost in this new geography. One question this engenders is how and whether we are seeing the formation of new types of politics that localize in these cities."); Crane, supra note 168.
224. See Chang, supra note 64, at 117-18.
225. Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. REV. 493, 496 (2001).
226. Id. Note also that federal welfare began in 1935. Prior to that, states and localities controlled public assistance and residency was the primary factor in determining benefits. MICHAEL B. KATZ, IN THE SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE IN AMERICA (rev. ed., 1996).
227. WALZER, supra note 22, at 38.
228. Id. ("Where welfare monies are raised and spent locally... the local people will seek to exclude newcomers who are likely welfare recipients.").
229. See Pratheepan Gulasekaram, Aliens with Guns: Equal Protection, Federal Power, and the Second Amendment, 92 IOWA L. REV. 891, 948-55 (2007). Also, the ruling in Lozano v. Hazelton places in jeopardy similar laws enacted in other localities. Although it might have used equal protection and due process rationales for its decision, the Hazelton court relied on preemption principles instead, ruling that the Hazelton ordinance was unlawful, not because it might have been a proxy for race, led to racial profiling, or purported to deny shelter to human beings, but rather because it affected immigration. See 496 F. Supp. 2d 477 (M.D. Pa. 2007).
230. See infra Part III.B.
231. S.F. CAL., ADMIN. CODE § 95.2 (2008) (authorizing the issuance of municipal ID cards); see sources cited supra note 10.
232. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 521-29 (M.D. Pa. 2007).
233. Within the city, identity cards could be used to open bank accounts, and access city services such as libraries. Undoubtedly, identity cards have drawbacks as well. Undocumented persons would be identifying themselves to city officials, and potentially leaving themselves open to discovery of their information through federal subpoena.
234. See Immigration and Naturalization Act, 8 U.S.C. § 1357(g) (2006);
235. see also Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALB. L. REV. 179 (2005).
236. Rose Cuison Villazor, What is a "Sanctuary"?, 61 SMU L. REV. 133 (2008) (analyzing development and use of the word "sanctuary" to describe public and private responses in localities to the presence of undocumented persons);
237. see also Sanctuary Cities and States, Illegal Immigrant Information Resource, http://sanctuarycities.info/index.html (last visited Nov. 21, 2008) (providing information regarding sanctuary policies).
238. See Miguel Bustillo, Texas May Pull Up the Welcome Mat, L.A. TIMES, Feb. 27, 2007, AI.
239. See, e.g., Martinez v. Regents of Univ. of Cal., No. CV 05-2064 (Cal. Super. Ct. Oct. 6, 2006) (denying a preemption challenge to CAL. EDUC. CODE § 68130.5 (2002)). But see Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518 (Cal. Ct. App. 2008).
240. Wishnie, supra note 179, at 496.
241. Schuck, supra note 20, at 58.
242. Saenz v. Roe, 526 U.S. 489, 505-07 (1999);
243. Sykes, supra note 28, at 159 (noting that undocumented persons participate only minimally in entitlement programs).
244. Currently, the U.S. is experiencing its second largest wave of immigration in its history, with the foreign bom population in 2006 accounting for 12.57% of total population. The highest point was in 1910 when it stood at 14.7%. See PEW HISPANIC CTR., STATISTICAL PORTRAIT OF THE FOREIGN-BORN POPULATION IN THE UNITED STATES, 2007 (2009), http://pewhispanic.org/factsheets/factsheet.php7FactsheetID=45;
245. U.S. Census Bureau, American Community Survey, http://www.census.gov/acs/ www/ (last visited Nov. 21, 2008);
246. see also Jacoby, supra note 23, at 50-58.
247. Rep. Tom Tancredo, Broken Border Promises, WASH. TIMES, May 16, 2007, available at http://www.washingtontimes. com/news/2007/may/16/20070516-083512-3445r/.
248. Christian Joppke, Immigration, Citizenship, and the Need for Integration 12 (U. Penn. Conference on Democracy, Citizenship, and Constitutionalism, 2008), available at http://www.sas.upenn.edu/dcc/ documents/ImmigrationCitizenshipandtheNeedforlntegration.doc.
249. San Francisco has used other legislative efforts to differentiate itself from other localities and instill pride and cohesiveness in its polity. Both the past performance of gay marriages in San Francisco, and its current stance on the issue have set it apart from many other localities.
250. Chang, supra note 64, at 109-13.
251. Id. at 99-104 (citing Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956)).
252. Id.
253. Id. at 102;
254. see also Ford, supra note 28, at 216-18.
255. Chang, supra note 64, at 109-13.
256. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (ruling that an organization has a First Amendment right of association to deny membership to an individual who undermines the organization's viewpoint).
257. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) (ruling that a N.Y. statute creating a school district with its borders contiguous with the village of Kiryas Joel, an enclave for a particular Jewish sect, violated the Establishment Clause because it intended to allow a religious community to exclude outsiders access to public institutions).
258. Dale, 530 U.S. at 640;
259. see also Sunder, supra note 54, at 524.
260. Dale, 530 U.S. at 640.
261. MICHAEL WALZER, ON TOLERATION 68 (1997) (referring to the Supreme Court's ruling in Wisconsin v. Yoder which allowed the Amish to forego mandated public school beyond a certain grade, stating "[t]he arrangement is justified in part by the marginality of the Amish, and in part by their embrace of marginality: their deep commitment not to live anywhere except on the margins of American society and not to seek any influence beyond them").
262. See, e.g., DONALD B. KRAYBILL, THE RIDDLE OF AMISH CULTURE 254 (1989) ("Few outsiders have chosen to place aside technological convenience and the delights of individualism and submit themselves to the collective order of Amish life. There is a price to being Amish-a price that few outsiders have been willing to pay. It means giving up self-assertive individualism-submitting to the Ordnung, to religious tradition, to the voice of elders, and to communal wisdom. It means foregoing individual preference in many areas-dress, marriage, transportation, education. It means limited mobility, limited occupational choice, and limited possibilities for self-enhancement. It means foregoing many conveniences, restricting social friendships, avoiding many types of leisure, and turning off electronic media. It means, in short, inhabiting a different social world, where the group, rather than the individual, reigns supreme.").
263. Id. Communities can choose not to incur these costs, but then their ability to minimize cultural change is left to chance.
264. WALZER, supra note 22, at 47;
265. see also John Thompson, White Australia Has a Black History: Sources for Aboriginal and Torres Strait Islander Studies in the National Library of Australia (James Cook Univ. of North Queensland Indigenous Research Ethics Conference Paper, 1995), available at http://www.nla.gov.au/nla/staffpaper/thomp.html.
266. KRAYBILL, supra note 209, at 42-43.
267. BISHOP, supra note 170, at 216-17;
268. Chang, supra note 64, at 101-02;
269. Ford, supra note 28, at 216-18.
270. Joppke, supra note 197, at 3 ("I argue that citizenship and integration campaigns are caught in the paradox of universalism: they aim at integrating immigrants into a particular society that is different here from there, but they can do so only in a universalistic diction that dodges the particularism that they aim at.").
271. See supra Part I.B.
272. Perry, supra note 22, at 115.
273. Id. at 104 ("Once a society has completely met these obligations-and I emphasize that no Western state currently appears to have done so-there is, I wish to suggest, a discretion concerning whether to take in more immigrants.").
274. Central Intelligence Agency, World Factbook, https://www.cia.gov/library/ publications/the-world-factbook/geos/us.html (last visited Nov. 21, 2008) [hereinafter World Factbook].
275. Legislative Analyst's Office, California Economy and Budget in Perspective, available at http://www.lao.ca.gov/2004/cal-facts/2004- calfacts-econ.htm (last visited Nov. 21, 2008).
276. Kennedy, supra note 64.
277. See supra notes 5, 63 and accompanying text.
278. See World Factbook, supra note 218.
279. Alden Speare, Jr. & Michael J. White, Optimal City Size and Population Density for the 21st Century (NPG Forum Series, 1990), available at www.npg.org/forum-series/optimal-city-size.htm. Undoubtedly, cultural issues intertwine with environmental ones. It is likely easier to mobilize a more homogeneous population to change behaviors than a culturally disparate one. Id.
280. See Chang, supra note 64, at 127;
281. Perry, supra note 22, at 114-15.
282. Perry, supra note 22, at 103;
283. see also Shachar, supra note 48.
284. Sunder, supra note 54, at 560.
285. Id.
286. Id. at 518.
287. Id. at 523 (quoting Seyla Benhabib, Cultural Complexity, Moral Interdependence, and the Global Dialogical Community, in WOMEN, CULTURE, AND DEVELOPMENT: A STUDY OF HUMAN CAPABILITIES 240 (Martha C. Nussbaum & Jonathan Glover eds., 1995)).
288. Su, Local Fragmentation as Immigration Regulation, supra note 125, at 46 ("[LJocal players and backdrops like those involved in recent immigration controversies like... Hazelton are not, as some have suggested, a new setting for today's border wars. Rather, they are in some sense, the only scale on which border wars can truly take place.").
289. See Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1397-1417 (1993).
290. Plyler v. Doe, 457 U.S. 202 (1982).
291. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (holding that Hialeah's ordinance prohibiting ritual animal sacrifice was violative of the Free Exercise clause because it targeted a specific religious minority).
292. Appiah, supra note 111, at 630. But see WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995) (suggesting that procedural liberalism insufficient for social unity).
293. But see Angel R. Oquendo, National Culture in Post-National Societies, 50 VILL. L. REV. 963, 975 (2005) ("It is also difficult to achieve social integration solely on the basis of a political culture. Solidarity usually requires more than a common set of political principles.").
294. Joppke, supra note 197, at 6 (quoting JURGEN HABERMAS, EINE ART SCHADENSABWICKLUNG (1987)).
295. Cf. Oquendo, supra note 235, at 967-68 ("When the state posits a particular 'thick' national culture for the entire country, it usually focuses on a particular (almost invariably majority) segment of the society. Even if the state tries to be as inclusive as possible, it typically excludes certain elements in order to give some coherence to the concept of a national culture.").
296. Sassen, supra note 168, at 57-58.
297. Shachar, supra note 48, at 379.
298. BOSNIAK, supra note 30.
299. Raskin, supra note 231, at 1397-1417 (noting non-citizen activity on school boards and local government).
300. See sources cited supra notes 2-3.
301. See Shachar, supra note 48, at 379 (noting that the arbitrariness of birth on one side of a national border will significantly determine prospects for economic and educational opportunities).
302. Stephen H. Legomsky, Comment, Why Citizenship?, 35 VA. J. INT'L L. 279 (1994) (considering reasons why citizenship in nation-states may be important and arguing that the current international order justifies the use of citizenship).
303. Chang, supra note 64, at 93-97.
304. U.S. CONST, art. IV, § 2, cl. 1; U.S. CONST, art. I, § 8, cl. 3;
305. Saenz v. Roe, 526 U.S. 489 (1999). The trade jealousies between states were one of the motivating reasons for abandoning the Articles of Confederation in favor of the Constitution. L. BRADFORD PRINCE, THE ARTICLES OF CONFEDERATION VS. THE CONSTITUTION 10-12 (Harvard Univ. Press 1867).
306. See Johnson, Protecting National Security Through More Liberal Admission of Immigrants, supra note 23.
307. Perry, supra note 22, at 114.