Immigration federalism: A reappraisal

New York University Law Review

Volumn 88, Issue 6, 2013, Pages 2074-2145

  Gulasekaram, Pratheepan ^a   Karthick Ramakrishnan, S ^b  

^a SANTA CLARA UNIVERSITY   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84889685927     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (389)

1. In this paper, we will mostly refer to the class of persons present in the United States without lawful status as unauthorized or undocumented immigrants, except when intentionally referring to the statements or actions of those who use the terms "illegal aliens" or "illegal immigrants. " Any reference to these persons is intended to refer to those who either entered without inspection, or are otherwise out of status and unlawfully present.
2. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
3. See generally Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), Colum. L. Rev. 1833 (1993).
4. 92 U.S. 275, 277 (1875).
5. Letter from Janet Napolitano, Governor of Ariz., to Jim Weiers, Speaker of the House (July 7, 2007), available at http://www.countysupervisors.org/uploads/07-07-02%20 HB%202779%20Statement.pdf.
6. 132 S. Ct. 2492, 2522 (2012) (Scalia, J., concurring in part and dissenting in part).
7. In 2010, Arizona passed S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010), enjoined in part by Arizona v. United States, 132 S. Ct. 2492 (2012), a law designed to enhance state immigration enforcement efforts by creating state immigration law crimes, and empowering state and local law enforcement officers to determine and report the legal status of suspected undocumented persons.
8. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
9. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
10. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
11. We use the terms "restrictionist" and "restrictive" to describe the range of policy positions arguing for greater immigration enforcement, increased state and local participation in enforcement, decreased ability of unlawfully present persons to access public goods, and fewer discretionary decisions to permit unlawful presence.
12. See Hazleton, Pa., Ordinance 2006-18 (Sept. 21, 2006) (criminalizing hiring or harboring illegal immigrants).
13. Lozano v. City of Hazleton, No. 07-3531, 2013 WL 3855549, at *1 (3d Cir. July 26, 2013) (enjoining both the employment and housing provisions of the city ordinance after reconsideration in light of Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011), and Arizona v. United States, 132 S. Ct. 2492 (2012).
14. H.B. 56, § 2, 2011 Leg., Reg. Sess. (Ala. 2011) (enacted and codified in part at Ala. Code § 31-13-2 (LexisNexis 2011).
15. 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 Louis Barletta, Mayor, Hazleton, Pa.).
16. Arizona, 132 S. Ct. at 2500.
17. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 609 (2008). To be clear, we are not suggesting that Professor Rodríguez supports the efforts of jurisdictions like Arizona and Hazleton; our reference to her excellent work is limited to the assumptions undergirding her call for local action. Moreover, it is important to clarify that Professor Rodríguez's work on this point does not specifically address S.B. 1070 or its copycat legislation; rather, her theory of local response deals with a variety of integrationist policies at the subfederal level.
18. Joseph A. Grundfest, The SEC's Proposed Proxy Access Rules: Politics, Economics, and the Law, 65 Bus. Law. 361 (2010)
19. Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787, 806 (2008).
20. See, e.g., Alex Kotlowitz, Our Town, N.Y. Times Mag., Aug. 5, 2007, at 30, 33 (discussing various legislation passed to discourage illegal immigration).
21. See Richard A. Posner, Justice Scalia Is Upset About Illegal Immigration. But Where Is His Evidence?, Slate, (June 27, 2012, 10:21 AM), http://www.slate.com/articles/news_ and_politics/the_breakfast_table/features/2012/_supreme_court_year_in_review/supreme_ court_year_in_review_justice_scalia_offers_no_evidence_to_back_up_his_claims_about_ illegal_immigration_.html (critiquing Justice Scalia's dissent in Arizona v. United States: "[T]he suggestion that illegal immigrants in Arizona are... straining [Americans'] social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.").
22. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
23. Keith Cunningham-Parmeter, Forced Federalism: States as Laboratories of Immigration Reform, 62 Hastings L.J. 1673, 1676 (2011)
24. See S. Karthick Ramakrishnan & Tom Wong, Partisanship, Not Spanish: Explaining Municipal Ordinances Affecting Undocumented Immigrants, in Taking Local Control: Immigration Policy Activism in U.S. Cities and States 73, 90 (Monica W. Varsanyi ed., 2010) (suggesting that partisanship, rather than economic or cultural factors, influences ordinances on immigration).
25. S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance of the Political in Immigration Federalism, 44 Ariz. St. L.J. 1431, 1436-45 (2012) (detailing how local partisanship explains the spread of restrictive immigration laws). Undoubtedly, a particular enacting jurisdiction may in fact be experiencing a measurable and significant growth in its undocumented population and a correlated increase in demographic concerns.
26. 2 U.S.C. §§ 1501-1571 (2012).
27. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
28. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
29. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
30. See Larry D. Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485, 1528 (1994) [hereinafter Kramer, Understanding Federalism] (detailing how the mutual dependency of party and elected officials at every level of government affects lawmaking)
31. see also Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000) [hereinafter Kramer, Political Safeguards of Federalism] (arguing that the development of political parties has largely destroyed the distinction between federal and state politics). We also argue, in other work, that congressional filibuster rules and targeted special-interest advocacy have played critical roles in stagnating federal legislative efforts.
32. See Cass R. Sunstein & Timur Kuran, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683 (1999) (describing the role of political activists who capitalize on public discourse and their potential influence in lawmaking).
33. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
34. Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179, 199-200, 230-34 (2006) (discussing states' arrest authority as derived from state sovereign power).
35. Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. Chi. Legal F. 57, 85-91 (2007) (noting that state immigration laws are not preempted if they track federal goals)
36. Peter J. Spiro, Learning to Live with Immigration Federalism, 29 Conn. L. Rev. 1627, 1635-37 (1997) (discussing the virtues of a "steam-valve" theory of immigration federalism).
37. Arizona v. United States, 132 S. Ct. 2492 (2012) (striking down three out of four provisions of Arizona's S.B. 1070).
38. Ga. Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012) (affirming most of the district court's injunction of Georgia's Illegal Immigration Reform and Enforcement Act of 2011, but refusing to enjoin a provision which authorizes investigation of immigration status under certain conditions).
39. United States v. Alabama, 691 F.3d 1269, 1294 (11th Cir. 2012).
40. United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) (affirming preliminary injunction of three sections of the state immigration enforcement act).
41. Villas at Parkside Partners v. City of Farmers Branch, No. 10-10751, 2013 WL 3791664 (5th Cir. July 22, 2013) (en banc) (enjoining city's occupancy license law, which required proof of citizenship or lawful immigration status to rent property within the city).
42. See, e.g., United States v. South Carolina, 906 F. Supp. 2d 463, 470-73 (D.S.C. 2012).
43. Robbie Brown, South Carolina: Federal Court Delivers Mixed Verdict on Immigration Measure, N.Y. Times, Nov. 16, 2012, at A24, available at http://www.nytimes.com/2012/11/16/us/south-carolina-federal-courtdelivers-mixed-verdict-on-immigration-measure.html.
44. Emery P. Dalesio, NC Immigration Panel Says Fed Should Do More, Bloomberg Businessweek (Dec. 7, 2012), http://www.businessweek.com/ap/2012-12-07/nc-immigration-panel-says-feds-should-domore.
45. See 2012 Immigration-Related Laws and Resolutions in the States (January 1-June 30, 2012), Nat'l Conference State Legislatures (July 2012), http://www.ncsl.org/issuesresearch/ immig/2012-immigration-related-laws-and-resolutions.aspx (reporting bills and resolutions passed or pending in the states in 2012).
46. See Stephen H. Legomsky, Commentary, Immigration Exceptionalism: Commentary on Is There a Plenary Power Doctrine?, 14 Geo. Immigr. L.J. 307, 307 (2000) ("Under [the plenary power doctrine], the Supreme Court has accorded exceptional deference to Congress, often approaching non-reviewability, whenever there are issues concerning the constitutionality of immigration legislation. ")
47. cf. United States v. South Carolina, 720 F.3d 518, 529 (4th Cir. 2013) ("We note that the presumption against preemption does not apply here because immigration is an area traditionally regulated by the federal government. ").
48. As an important caveat, we should note that defending the constitutional soundness and normative value of the presumption of federal exclusivity is beyond the scope of this paper. For our present purposes, we simply note its development and existence in our constitutional order.
49. 2 U.S.C. §§ 1501-1571 (2012).
50. See, e.g., An Act to Establish a Uniform Rule of Naturalization, 1 Stat. 103, Mar. 26, 1790 (repealed 1795).
51. 2 U.S.C. §§ 1501-1571 (2012).
52. 2 U.S.C. §§ 1501-1571 (2012).
53. 92 U.S. 275, 280 (1875).
54. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
55. cf. Villas at Parkside Partners v. City of Farmers Branch, No. 10-10751, 2013 WL 3791664, at *30 (5th Cir. July 22, 2013) (en banc).
56. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
57. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
58. 130 U.S. 581, 603-04 (1889) ("That [Congress] can exclude aliens from its territory is [unquestionable].... While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation.... ")
59. 149 U.S. 698, 727 (1893) (upholding as a valid exercise of Congress's broad powers over immigration a federal law permitting deportation of Chinese immigrants who could not produce a certificate of residence or attestation to residency by "at least one credible white witness").
60. See, e.g., Ambach v. Norwick, 441 U.S. 68, 75, 80-81 (1979) (sustaining a New York law barring aliens from teaching in public schools under the "governmental functions" exception).
61. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
62. This line, of course, is hard to draw and is theoretically suspect; every law that discriminates against noncitizens likely influences their choices to remain or leave. However, the Court, at least in theory, suggests a doctrinal difference between the actual regulation of entry, exit, and term and conditions of remaining, and all other state and local regulation affecting noncitizens. For purposes of this Article, we accept the notion that there is "core" immigration regulation that is solely federal in nature, and other types of regulation that discriminate or otherwise affect noncitizens that do not directly affect entry, exit, or the conditions of remaining.
63. See, e.g., Ambach, 441 U.S. at 80-81 (upholding New York law barring noncitizens from public school teaching certification); Foley v. Connelie, 435 U.S. 291, 294-300 (1978) (upholding New York law barring noncitizens from working as state troopers).
64. 424 U.S. 351, 254-65 (1976).
65. 118 U.S. 356, 374 (1886).
66. It is worth noting that the federal government appears to be scaling back use of 287(g) agreements in favor of its Secure Communities program, which enables local authorities to access federal databases to check the immigration status of persons in their custody. See, e.g., Alan Gomez, Immigration Enforcement Program to Be Shut Down, USA Today (Feb. 17, 2012, 3:25 PM), http://usatoday30.usatoday.com/news/nation/story/2012-02-17/immigration-enforcement-program/53134284/1 (discussing Department of Homeland Security plans to terminate some 287(g) agreements).
67. See 8 U.S.C. §§ 1323(a), 1324(a) (2012) (criminalizing smuggling and harboring of unlawfully present persons).
68. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
69. Memorandum from Jay S. Bybee, Assistant Att'y Gen., U.S. Dep't of Justice, to Attorney Gen. John Ashcroft, Non-Preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for Immigration Violations (Apr. 3, 2002), available at http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf.
70. Arizona v. United States, 132 S. Ct. 2492, 2511 (2012) (Scalia, J., concurring in part and dissenting in part) ("As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations express in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. ").
71. 908 F. Supp. 755 (C.D. Cal. 1995).
72. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
73. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
74. See League of United Latin Am. Citizens, 908 F. Supp. at 774.
75. See League of United Latin Am. Citizens, 908 F. Supp. at 774.
76. See Graham v. Richardson, 403 U.S. 365, 372 (1971) (striking down Arizona welfare law that discriminated on the basis of alienage).
77. Yick Wo v. Hopkins, 118 U.S. 356, 374-75 (1886) (striking down the unequal enforcement of a San Francisco laundry ordinance against noncitizen Chinese laundry owners).
78. See Graham, 403 U.S. at 372. Note, however, that in the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), Congress purported to allow states to discriminate against noncitizens in the provision of certain types of public benefits.
79. See Mathews v. Diaz, 426 U.S. 67, 80 (1976) (upholding alienage distinctions in federal government's public benefits law).
80. Plyler v. Doe, 457 U.S. 202, 230 (1982).
81. 312 U.S. 52, 68-75 (1941)
82. see also Gabriel J. Chin & Marc L. Miller, The Unconstitutionality of State Regulation of Immigration Through Criminal Law, 61 Duke L.J. 251, 295 (2011) ("This is not the first time in American legal history that state attempts to regulate immigration have been judicially rebuffed. ").
83. Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153.
84. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163.
85. Immigration and Nationality Act of 1965, Pub. L. No. 89-236, 79 Stat. 911.
86. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359.
87. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
88. H.B. 56, § 2, 2011 Leg., Reg. Sess. (Ala. 2011) (enacted and codified in part at Ala. Code § 31-13-2 (LexisNexis 2011).
89. Ga. Code Ann. § 17-5-100 (2013).
90. enjoined in part, Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012).
91. Utah Code Ann. §§ 76-9-1001-76-9-1009 (West 2013).
92. S.C. Code Ann. §§ 16-13-480 (2012), held preempted.
93. United States v. South Carolina, 720 F.3d 518, 533 (2013).
94. S.C. Code Ann. § 23-3-1100 (2012).
95. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
96. Chy Lung v. Freeman, 92 U.S. 275, 280 (1875).
97. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
98. See, e.g., Plaintiff's Brief in Support of Motion for Preliminary Injunction at 12, Georgia Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011) (No. 1:11-CV-1804-TWT), 2011 WL 2438945 (citing Chy Lung for proposition that the federal government has exclusive power over immigration because of the connection between immigration and foreign relations).
99. See, e.g., Corrected Response Brief for Appellees and Principal Brief for Cross-Appellants at 17, United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) (Nos. 11-14532 & 11-14674), 2012 WL 263053 (arguing that the law at issue functioned differently than the one in Chy Lung).
100. 403 U.S. 365 (1971) (striking down Arizona and Pennsylvania statutes that restricted noncitizens from accessing state welfare benefits on equal protection and federal power grounds).
101. Brief for Appellees at 21, Sailer v. Leger (No. 727), consolidated on appeal with Graham v. Richardson, 403 U.S. 365 (1971) (No. 609), 1971 WL 133395 ("Pennsylvania has raised no 'vital necessity' for regulating pauper aliens through differential operation of its general assistance program.... " (citing Chy Lung, 92 U.S. at 280).
102. 403 U.S. 365, 382-83 (1971).
103. See, e.g., Jew Ho v. Williamson, 103 F. 10, 18, 23-24 (C.C.N.D. Cal. 1900).
104. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
105. See, e.g., United States v. South Carolina, 720 F.3d 518, 522 (4th Cir. 2013).
106. On the scope of "risk regulation, " see John D. Graham, Legislative Approaches to Achieving More Protection Against Risk at Less Cost, 1997 U. Chi. Legal F. 13, 18-20
107. Jefferson Morley, The Man Behind Romney's 'Self-Deportation' Plan, Salon (Feb. 22, 2012, 10:44 PM), http://www.salon.com/2012/02/22/the_man_behind_romneys_self_ deportation_dreams/ (quoting Kobach in his capacity as advisor to 2012 Republican presidential nominee Gov. Mitt Romney)
108. see generally Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration, 22 Geo. Immigr. L.J. 459, 468 (2008).
109. S.B. 1070, § 1, 49th Leg., 2d Reg. Sess. (Ariz. 2010).
110. enjoined in part by Arizona v. United States, 132 S. Ct. 2492 (2012).
111. Ala. Code § 31-13-2 (LexisNexis 2011).
112. United States v. Alabama, 691 F.3d 1269, 1294, 1296 (11th Cir. 2012).
113. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
114. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
115. Alabama, 691 F.3d at 1294.
116. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
117. See Ga. Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1263-65 (11th Cir. 2012) (finding a section of the state law both field-and conflictpreempted)
118. David S. Rubenstein, Immigration Structuralism: A Return to Form, 8 Duke J. Const. L. & Pub. Pol'y 101, 140-43 (2013) (arguing that the Court treated S.B. 1070 as an alienage law).
119. See United States v. South Carolina, 840 F. Supp. 2d 898, 905-07 (D.S.C. 2011) (recounting legislative statements and history in support of the state law), modified, 906 F. Supp. 2d 463 (D.S.C. 2012), aff'd, 720 F.3d 815 (4th Cir. 2013); Governor Janice K. Brewer, Press Release Accompanying the Signing of S.B. 1070 (Apr. 23, 2010), available at http:// azgovernor.gov/dms/upload/PR_042310_StatementByGovernorOnSB1070.pdf [hereinafter Brewer, Statement on S.B. 1070]
120. Josh Gerstein, South Carolina Immigration Law Sparks Suit from Justice Department, POLITICO (Oct. 31, 2011, 4:36 PM), http://www.politico. com/news/stories/1011/67274.html (citing statements of South Carolina Governor Haley).
121. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
122. Kim Chandler, Immigration Law Sponsors Say Issue Isn't Going Away; Opponents Say It's Time for Alabama to 'Move On,' AL. com (Apr. 29, 2013, 6:05 PM), http://blog.al.com/wire/2013/04/alabama_immigration_ law_sponso.html (discussing a statement made by Republican State Senator Scott Beason contending that "[t]he reason we have this problem is the federal government will not do its job")
123. Valerie Richardson, Arizona's AG: Court's Ruling Is "A 70% Win, " Wash. Times, June 25, 2012, at A4 (citing a remark by Democratic U.S. Senate candidate Richard Carmona that "SB 1070 is the product of the federal government's failure to act").
124. Pub. L. No. 104-208, 110 Stat. 3009-546, 575-92 (1996) (expanding grounds for removal, reducing judicial review of removal, reducing opportunities to seek relief from removal, and expanding list of offenses with mandatory immigration detention).
125. Pub. L. No. 104-132, 110 Stat. 1214, 1273-77 (1996) (requiring the mandatory detention of noncitizens convicted of a range of offenses).
126. Pub. L. No. 104-193, 110 Stat. 2105, 2260-70 (1996) (limiting eligibility of noncitizens for federal public benefits and purporting to authorize states to similarly restrict noncitizens' access to certain public benefits).
127. Arizona v. United States, 132 S. Ct. 2492, 2522 (2012) (Scalia, J., concurring in part and dissenting in part) (referencing Arizona's argument that the federal enforcement efforts over the last decade had left Arizona's border comparatively neglected).
128. See Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 342 n.78 (2012) (noting that large institutions may be more capable of acquiring and assessing information than individuals).
129. See Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 342 n.78 (2012) (noting that large institutions may be more capable of acquiring and assessing information than individuals).
130. 2 U.S.C. §§ 1501-1571 (2012).
131. Professor Jessica Bulman-Pozen has characterized Arizona's S.B. 1070 as an instance of state "goading" that may help check federal executive power. Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459, 484-86, 490 (2012) ("Arizona has similarly presented its bid to enforce federal immigration law as vindicating congressional intent against an executive branch bent on underenforcing the law. ").
132. See 8 U.S.C. §§ 1182, 1227 (2012) (describing classes of "deportable aliens, " including those who were inadmissible at the time of entry (for example, because of having entered without inspection), those remaining after expiration of nonimmigrant visa periods, and those violating the conditions of their nonimmigrant status).
133. See Hiroshi Motomura, The Discretion that Matters, 58 U.C.L.A. L. Rev. 1819, 1828-29 (2011) (suggesting there is a chance of less than ten percent that an alien who enters without inspection will be arrested in a given year).
134. See Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J., concurring in part and dissenting in part) ("Of course there is no reason why the Federal Executive's need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona.... "); Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809, 844 (2007) (discussing the government's failure to enforce existing immigration rules).
135. Reply Brief for Petitioners at 2, Arizona, 132 S. Ct. at 2492 (No. 11-182), 2012 WL 1332574. We speak here of executive discretion in the broadest sense, including agency and administrative decisions about priorities, deferred action programs, and individualized considerations in specific cases.
136. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
137. See Secure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2638.
138. See, e.g., Department of Homeland Security Appropriations Act, H.R. 2892, 111th Cong. (2010)
139. Continuing Appropriations Act, H.R. 2017, 112th Cong. (2012).
140. Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (emphasis added).
141. See Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 342 n.78 (2012) (noting that large institutions may be more capable of acquiring and assessing information than individuals).
142. Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 462 (2009) ("[I]n reality, the President has historically possessed tremendous power over core immigrant screening policy through three channels: through claims of inherent executive authority; through formal mechanisms of congressional delegation; and through... de facto delegation. ")
143. Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244-45 (2010) (describing prosecutorial discretion as welcome and necessary in the area of immigration law).
144. Arizona v. United States, 132 S. Ct. 2492, 2495 (2012).
145. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
146. 2 U.S.C. §§ 1501-1571 (2012).
147. Cristina M. Rodríguez, Constraint Through Delegation: The Case of Executive Control over Immigration Policy, 59 Duke L.J. 1787, 1789 (2010) ("[T]he [P]resident exercises... power over core immigration policy as a de facto matter, albeit indirectly and in a manner obscured from scrutiny, primarily through prosecutorial discretion or the use of discretionary enforcement power. "). Specifically concerning executive power and the Obama administration's recently instituted Deferred Action for Childhood Arrivals (DACA) program, see Letter from Professor Hiroshi Motomura, UCLA School of Law, on Behalf of Immigration Law Professors, to President Obama (May 28, 2012), available at http://www. nilc.org/document.html?id=754
148. Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1265 (11th Cir. 2012) (citations omitted)
149. 2 U.S.C. §§ 1501-1571 (2012).
150. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
151. Pratheepan Gulasekaram, Why a Wall?, 2 U.C.I. L. Rev. 147, 155 (2012) (noting the exorbitant cost of current borderfencing, which covers only 700 of over 2000 miles of southern border, and the continued costs of repairing, maintaining, and monitoring the fence)
152. Michael A. Olivas, Dreams Deferred, 21 Wm. & Mary Bill Rts. J. 463, 475 (2012) (noting that deferred action doctrine became established with the case of John Lennon in the 1970s).
153. Michael A. Olivas, The Dangers of Riding the Bus, N.Y. Times (Aug. 1, 2012, 12:00 AM), http://www.nytimes.com/roomfordebate/2012/08/01/isgetting-on-the-undocubus-a-good-idea/advice-to-immigrants-dont-get-on-the-undocubus.
154. 2 U.S.C. §§ 1501-1571 (2012).
155. Memorandum from John Morton, Assistant Sec'y, U.S. Immigration & Customs Enforcement, on Civil Immigration Enforcement (June 30, 2010). At present, immigration courts are backlogged at record levels, with 314,147 cases awaiting resolution as of July 2012. Elise Foley, Immigration Court Backlogs at Record High, Keeping Immigrants in Limbo, Huffington Post (July 27, 2012, 4:36 PM), http://www.huffingtonpost.com/2012/ 07/27/immigration-court-backlogs_n_1711505.html. To supplement existing removal mechanisms, DHS instituted the Secure Communities Program in 2008, requiring that all localities, pursuant to an express federal directive, share information about arrestees with ICE.
156. See Pratheepan Gulasekaram, No Exception to the Rule: The Unconstitutionality of State Immigration Enforcement Laws, 5 Advance: J. ACS Issue Groups, Fall 2011, at 37, 41 ("Rarely, sub-federal enactments have survived, but only when the state or locality has regulated in an area of traditional state concern, and when the federal government had not disapproved of state action. ").
157. Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J., concurring in part and dissenting in part) ("Of course there is no reason why the Federal Executive's need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona.... ").
158. Cf. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1986-87 (2011) (upholding Arizona's mandatory E-Verify law, relying, in part, on the attestation of the federal government that this type of state enforcement would not overly burden federal resources).
159. See, e.g., Plyler v. Doe, 457 U.S. 202, 219 n.18 ("As the District Court observed... the confluence of Government policies has resulted in 'the existence of a large number of employed illegal aliens... whose presence is tolerated, whose employment is perhaps even welcomed....'" (quoting Doe v. Plyler, 458 F. Supp. 569, 585 (E.D. Tex. 1978).
160. See Arizona, 132 S. Ct. at 2499 ("Discretion in the enforcement of immigration law embraces immediate human concerns. ").
161. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
162. 2 U.S.C. §§ 1501-1571 (2012).
163. See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 795 (2013) (critiquing President Obama's Deferred Action for Child Arrivals program as an unconstitutional exercise of executive power).
164. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
165. see also Ariz. Dream Act Coal. v. Brewer, No. CV12-02546 PHX DGC, 2013 WL 2128315, at *1 (D. Ariz. May 16, 2013) (ruling that the INA delegates to the Secretary of Homeland Security "a form of prosecutorial discretion [to] decide not to pursue the removal of a person unlawfully in the United States").
166. S.B. 1070, § 2, 49th Leg., 2d Reg. Sess. (Ariz. 2010).
167. enjoined in part by Arizona v. United States, 132 S. Ct. 2492 (2012).
168. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
169. See, e.g., Asraa Mustufa, South Carolina's Gov. Nikki Haley Makes Good on Anti-Immigrant Promises, Colorlines (June 30, 2011, 9:31 AM), http://colorlines.com/archives/ 2011/06/south_carolina_governor_signs_anti-immigrant_bill_into_law.html (reporting Senator Larry Grooms's commentary that illegal immigrants "cling together in illegal communities and bring with them drugs, prostitution, violent crimes, gang activity").
170. See Ala. Code § 31-13-2 (LexisNexis 2011) ("The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness.... [T]he costs incurred by school districts... can adversely affect the availability of public education resources to students who are United States citizens.... ").
171. Valley Park, Mo., Ordinance No. 1736, § 2(C) (2007) (stating purpose of city's illegal immigrant employment and rental law).
172. Our information on restrictive activity at the city level is based on lists collected by various legal defense organizations, and validated by making phone calls to jurisdictions noted as considering or passing ordinances, as well as by monitoring news stories on local ordinances. We merged information on the proposal and passage of ordinances with census data from the larger universe of over 25,000 cities. We ran a separate analysis involving county subdivisions to account for townships and villages in many states, and find no significant difference in our findings on local partisanship and immigration-related factors. One notable limitation of the county subdivision data is that immigration measures from 2000 (from the SF3 file) are publicly available only by place, not county subdivision. At the state level, two graduate student research assistants coded legislative summaries provided by the National Conference of State Legislatures based on their topic, valence, and severity. See State Laws Related to Immigration and Immigrants, Nat'l Conference of State Legislatures, http://www.ncsl.org/issues-research/immig/state-laws-related-toimmigration-and-immigrants.aspx (last visited Aug. 30, 2013) (providing annual legislative summaries from 2005 to 2010). We also incorporated information on immigration-related laws from FindLaw, a Thomson Reuters resource on cases and statutes, available at State Immigration Laws, FindLaw, http://immigration.findlaw.com/immigration-laws-andresources/ state-immigration-laws/ (last visited Aug. 23, 2013). More information about our datasets can be found in Appendix A.
173. In our state models, we rely on estimates from the Pew Research Center. Pew Research Ctr., Unauthorized Immigrant Population: National and State Trends, 2010 (2011), available at http://www.pewhispanic.org/2011/02/01/unauthorizedimmigrant-population-brnational-and-state-trends-2010/. We do not have similar data at the local level, so we instead use "recent immigrants" (the share of foreign-born who have arrived since 2000) as a proxy measure, based on the fact that it is the variable most strongly associated with the growth of the unauthorized population between 2000 and 2007 at the state level (r=0.50). U.S. Census Bureau, 2000 Decennial Census SF3 File, Year of Entry for the Foreign-Born Population, tbl.P022; U.S. Census Bureau, 2005-2009 American Community Survey 5-Year Estimates, Year of Entry by Citizenship Status in the United States, tbl.B05005.
174. Measured as the proportion of Spanish-speaking households with no member who speaks English at a proficiency level of "very well, " derived from the American Community Survey. U.S. Census Bureau, 2005-2009 American Community Survey 5-Year Estimates, Household Language by Linguistic Isolation, tbl. B16002. This variable is run separately from the overcrowding variable because the two variables have a relatively high degree of collinearity (r=0.496).
175. Measured as more than 1.5 persons per habitable room, derived from the American Community Survey. The findings are similar when using the metric of one person per habitable room. U.S. Census Bureau, 2005-2009 American Community Survey 5-Year Estimates, Tenure by Occupants Per Room, tbl. B25014.
176. Economic stress measured as the absolute proportion of White and Black residents living below the poverty line; relative economic stress measured as the relative rate of poverty of Whites and Blacks vis-à-vis Latinos, derived from the American Community Survey. U.S. Census Bureau, 2005-2009 American Community Survey 5-Year Estimates, Poverty Status in the Past 12 Months by Sex, by Age, tbls. B17001B, B17001H, B17001I.
177. Proportion of citizen population that is naturalized, derived from the American Community Survey. U.S. Census Bureau, 2005-2009 American Community Survey 5-Year Estimates, Sex by Age by Citizenship Status, tbl. B05003.
178. Measured as the proportion of workers in the jurisdiction that are employed in the agriculture and construction industries, respectively-derived from the American Community Survey. U.S. Census Bureau, 2005-2009 American Community Survey 5-Year Estimates, Industry by Occupation for the Civilian Employed Population 16 Years and Over, tbl. S2405.
179. Measured as the proportion of voters for George Bush over John Kerry in 2004, with party majority in the geographic area as an alternative measure. See Anthony C. Robinson, Geovisualization of the 2004 Presidential Election, Penn. St. U., http://www.personal.psu. edu/users/a/c/acr181/election.html (last visited Aug. 26, 2013). We use presidential voting data because party registration data is not available systematically at the local level across all 50 states. In order to avoid the possibility of reverse-causality (of local immigration opinion on ordinances driving presidential voting preferences), we use the most proximate data prior to the rise of restrictive local ordinances starting in 2005.
180. In our city-level dataset, we use our state-level measure of restrictive or permissive legislation as an explanatory factor. For more details on our coding procedures of state laws, see Appendix B.
181. See generally, e.g., Kristin F. Butcher & Anne Morrison Piehl, Fed. Res. Bank Chicago, Why Are Immigrants' Incarceration Rates So Low? (2005), available at http://www.chicagofed.org/digital_assets/publications/working_papers/2005/wp2005_19.pdf
182. Robert J. Sampson, Rethinking Crime and Immigration, Contexts, Winter 2008, at 28, 28-33
183. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
184. As discussed in the following subsection, the number of Spanish-dominant households was also a salient factor, but this had a much smaller effect on the data.
185. These figures are means (averages). We use data from the 2000 Census, given missing data in the 2005-2009 American Community Survey file. The corresponding median figures are 1.72% for restrictive ordinance cities, and 0.16% for cities in the nation as a whole. U.S. Census Bureau, 2000 Decennial Census SF3 File, Year of Entry for the Foreign-Born Population, tbl. P022.
186. This is in line with various strands of the racial threat literature, where the arrival of even a few nonwhites, and misperception of the size and growth of minority populations, fuel racially conservative attitudes. See Daniel Herda, How Many Immigrants? Foreign-Born Population Innumeracy in Europe, 74 Pub. Opinion Q. 674, 676-78 (2010) (detailing how individuals often misperceive immigrant population sizes)
187. Cara J. Wong, "Little" and "Big" Pictures in Our Heads: Race, Local Context, and Innumeracy About Racial Groups in the United States, 71 Pub. Opinion Q. 392, 395-99 (2007) (reporting that all races overestimate the presence of minority groups).
188. See Ga. Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1263-65 (11th Cir. 2012) (finding a section of the state law both field-and conflictpreempted)
189. See Ga. Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1263-65 (11th Cir. 2012) (finding a section of the state law both field-and conflictpreempted)
190. U.S. Census Bureau, 2005-2009 American Community Survey 5-Year Estimates Year of Entry by Citizenship Status in the United States, tbl. B05005.
191. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
192. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
193. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
194. 2 U.S.C. §§ 1501-1571 (2012).
195. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
196. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
197. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 23-24 (2007).
198. Lymari Morales, Americans' Immigration Concerns Linger, Gallup (Jan. 17, 2012), http://www.gallup.com/poll/152072/Americans-Immigration-Concerns-Linger.aspx (revealing that polls conducted before Republican primaries show 77% of Republican voters were dissatisfied with the level of immigration in the country, and 71% wanted less or the same level of immigration; the poll found that 64% of all Americans polled were dissatisfied with immigration levels during the primary season)
199. Frank Newport, Republicans Prioritize Immigration; Dems, Financial Reform, Gallup (Apr. 30, 2010), http://www.gallup.com/poll/127607/republicans-prioritize-immigration-dems-financialreform. aspx (showing that plurality of self-identified Republican voters favored an immigration-reform bill over finance reform or energy bills, 45% to 37% and 15%).
200. See Laura Meckler, The GOP's Immigration Dilemma, Wall St. J., Feb. 26, 2013, at A12 ("For House Republicans, the issue is particularly treacherous. Attracting Hispanic votes is an imperative for presidential candidates, but most House Republicans represent overwhelmingly white districts safely in GOP hands; the most serious political threat they will face is a primary challenge from someone more conservative. "). This dynamic was evident in Arizona as far back as 2004 and 2006, as longstanding Republican incumbents such as Congressman Jim Kolbe faced competitive primary elections by challengers focusing on immigration and border-control issues. See Joseph Lelyveld, The Border Dividing Arizona, N.Y. Times Mag., Oct. 15, 2006, at 40 (discussing the rise in Republican primary candidates focused on immigration reform, including Kolbe's 2004 reelection campaign, where immigration-focused challenger Randy Graf won 43% of the vote in the Republican primary).
201. See Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. (forthcoming 2014) (manuscript at 7) (on file with the New York University Law Review) ("Today's ideologically cohesive, polarized parties help to explain state challenges to the federal government.... Partisan federalism's challenges follow from state-federal overlap and integration, and they involve state and federal actors alike turning to state governments to articulate and stage partisan competition. ").
202. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
203. See Catherine L. Carpenter, Legislative Epidemics, 58 Buff. L. Rev. 1, 8-10 (2010) (describing how a "small core group of people" can cause a legislative epidemic).
204. 2 U.S.C. §§ 1501-1571 (2012).
205. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
206. Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2252-60 (2013) (holding that Arizona's evidence-of-citizenship requirement was preempted by the National Voter Registration Act of 1993).
207. See Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 342 n.78 (2012) (noting that large institutions may be more capable of acquiring and assessing information than individuals).
208. Kris W. Kobach, Why Arizona Drew a Line, N.Y. Times, Apr. 29, 2010, at A31.
209. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
210. Kent Jackson, Top Court Gives City 2nd Chance, Standard Speaker, June 7, 2011, available at http:// standardspeaker.com/news/top-court-gives-city-2nd-chance-1.1158117 (noting that Kobach, attorney for Hazleton, was encouraged by the Supreme Court's Whiting decision and quoting him as arguing that it "'put Hazleton on very strong ground'" for remand consideration in front of the Third Circuit)
211. George Talbot, Kris Kobach, the Kansas Lawyer Behind Alabama's Immigration Law, AL. com (Oct. 16, 2011, 9:44 PM), http://blog.al.com/ live/2011/10/kris_kobach_the_kansas_lawyer_1.html; Hazleton Mayor Plans to Take Immigration Fight to Supreme Court, Fox News Latino (Sept. 3, 2013), http://latino.fox news.com/latino/politics/2013/09/03/hazleton-mayor-plans-to-take-immigration-fight-tosupreme-court (noting that Kobach authored Arizona's immigration law).
212. See Model Laws, Immigr. Reform L. Inst., www.irli.org/laws (last visited Aug. 27, 2013).
213. See, e.g., How Attrition Through Enforcement Works, NumbersUSA, https://www. numbersusa.com/content/learn/issues/american-workers/how-attrition-through-enforce ment-works.html (last visited Aug. 28, 2013) (noting that immigration raids would be unnecessary if federal, state, and local enforcement effectively made "living illegally... more difficult and less satisfying over time")
214. see also David A. Fahrenthold, Self-Deportation Proponents Kris Kobach, Michael Hethmon Facing Time of Trial, Wash. Post (Apr. 24, 2012), http://articles.washingtonpost.com/2012-04-24/politics/35452165_1_ immigration-reform-law-institute-illegal-immigrants-michael-hethmon (reporting the sentiment that without Kris Kobach and Michael Hethmon, a fellow at IRLI, the restrictionist movement would not have gotten off the ground).
215. Such activism makes sense when national compromises would moderate the enforcement-heavy approach advocated by most restrictionists. At times, however, issue entrepreneurs have rallied against national legislation comporting with their goals.
216. Kris W. Kobach, Another Amnesty?: New Bill Hobbles Border States, N.Y. Post (June 15, 2011, 10:53 PM), http://www.nypost.com/p/news/opinion/opedcolumnists/ another_amnesty_LauPhaZnaURz3fUcpXAphK.
217. See S. Karthick Ramakrishnan & Tom Wong, Partisanship, Not Spanish: Explaining Municipal Ordinances Affecting Undocumented Immigrants, in Taking Local Control: Immigration Policy Activism in U.S. Cities and States 73, 90 (Monica W. Varsanyi ed., 2010) (suggesting that partisanship, rather than economic or cultural factors, influences ordinances on immigration).
218. see also Jim Behnke, The Tres Amigos-Kolbe, Flake, McCain, Sierra Vista Herald (Jan. 8, 2004), http:// www.svherald.com/content/january/2009/09/19/23610 (critiquing the immigration bill introduced by Kolbe, Flake, and McCain).
219. See Joseph Carroll, Public Still Supports Path to Citizenship for Illegal Immigrants, Gallup (Mar. 14, 2007), http://www.gallup.com/poll/26875/public-still-supports-pathcitizenship-illegal-immigrants.aspx (revealing that a majority of Republicans, Democrats, and independents favor allowing unauthorized immigrants to remain in the U.S. to work or become full citizens).
220. See Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong. §§ 101-102, 112, 202 (2007) (including provisions for enhanced border and interior enforcement).
221. See Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong. §§ 101-102, 112, 202 (2007) (including provisions for enhanced border and interior enforcement).
222. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
223. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
224. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
225. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
226. Michael A. Olivas, Immigration-Related State and Local Ordinances, 2007 U. Chi. Legal F., 2007, at 27, 39-40 ("In 1994, his popularity sagging, California Republican Governor Pete Wilson backed... Proposition 187.... Wilson was re-elected. ").
227. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
228. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
229. See Tom Cotton, It's the House Bill or Nothing on Immigration, WALL ST. J., July 11, 2013, at A15 (stating that the Senate's immigration bill would be rejected by the House due to its emphasis on legalization and lack of enforcement provisions)
230. Philip Elliott, House Judiciary Chairman Rejects 'Special Pathway to Citizenship,' Salt Lake Trib. (June 30, 2013, 5:43 PM), http://www.sltrib.com/sltrib/world/56535553-68/senate-immigration-billpathway. html.csp (noting that Rep. Bob Goodlatte, the Republican Chairman of the House Judiciary Committee denounced the Senate's passage of a comprehensive immigration bill, stating that immigration legislation cannot provide a special pathway to citizenship for illegal residents).
231. 2 U.S.C. §§ 1501-1571 (2012).
232. Indeed, we argue that preemption jurisprudence used in alienage law assessments is not the proper lens through which to view these enactments in the first place.
233. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
234. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
235. Matthew Parlow, A Localist's Case for Decentralizing Immigration Policy, 84 Denv. U. L. Rev. 1061, 1071 (2007) ("Indeed, different states and local governments are affected in drastically different manners-both positively and negatively-by illegal immigration. Local governments should be able to respond accordingly, especially if the federal government is not meeting those communities' needs. ").
236. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
237. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
238. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
239. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
240. see also Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 Yale L.J. 71, 76 (2000) (describing how, in the absence of their own private information, people tend to follow others, and this process helps reach extreme policy positions)
241. Eric Talley, Precedential Cascades, 73 S. Cal. L. Rev. 87, 90 (1999) (discussing how "social entrepreneurs" are eager to exploit group pathologies).
242. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
243. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
244. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
245. 2 U.S.C. §§ 1501-1571 (2012).
246. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
247. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
248. Model Laws, Immigr. Reform L. Inst., available at http://www.irli.org/laws (last visited Aug. 27, 2013).
249. See Patrik Jonsson, Why Republicans Are Doing an About-Face on Tough Alabama Immigration Law, Christian Sci. Monitor (Nov. 16, 2011), http://www.csmonitor.com/ USA/Politics/2011/1116/Why-Republicans-are-doing-an-about-face-on-tough-Alabamaimmigration-law ("Prof. Samuel Addy... recently predicted that HB 56 will reduce the Alabama economy by $40 million as income and spending by both illegal and legal Hispanic immigrants will decline. What's more, employers face troves of fresh paperwork and licensing requirements... that they say will potentially hurt business.")
250. Peter J. Spiro, Be Careful What You Wish For, N.Y. Times (May 14, 2012, 1:49 PM), http://www.nytimes. com/roomfordebate/2011/10/04/should-alabama-schools-help-catch-illegal-immigrants/becareful-what-you-wish-for-alabama (arguing that Alabama's law, driving out immigrants, will force the state to appreciate their value);
251. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
252. See Cass R. Sunstein, Cost-Benefit Default Principles, 99 Mich. L. Rev. 1651, 1661 (2001) (providing examples where cost-benefit analysis has "led to regulations that accomplish statutory goals at lower cost").
253. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
254. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
255. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
256. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
257. 2 U.S.C. §§ 1501-1571 (2012).
258. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
259. 2 U.S.C. §§ 1501-1571 (2012).
260. The limitation has to be defined in terms of the quantity of subfederal jurisdictions; substantively, it is difficult to suggest that Alabama's recent immigration law-which has had the effect of driving immigrant children out of school-is relatively harmless, even if it occurs only within an individual state.
261. Peter J. Spiro, Let Arizona's Law Stand, N.Y. Times, Apr. 23, 2012, at A19.
262. 2 U.S.C. §§ 1501-1571 (2012).
263. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
264. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
265. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
266. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
267. 2 U.S.C. §§ 1501-1571 (2012).
268. Here, we defend this claim only with regard to the time period we investigate (2000-2012). In future projects we will address Professor Spiro's account of legislative action prior to this current era of enhanced party polarization on immigration issues.
269. See H.B. 488, 2012 Leg., Reg. Sess. (Miss. 2012); H.B. 56, 2011 Leg., Reg. Sess. (Ala. 2011) (codified in part at Ala. Code § 31-13 (LexisNexis 2011); H.B. 87, 151st Gen. Assemb. (Ga. 2011); Hazleton, Pa., Ordinance 2006-18 (Sept. 21, 2006), available at https:// www.aclu.org/files/pdfs/immigrants/hazleton_secondordinance.pdf
270. Valley Park, Mo., Ordinance 1708 (July 17, 2006), available at http://www.aclu.org/files/pdfs/immigrants/ valleypark_ordinance.pdf; S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010), enjoined in part by Arizona v. United States, 132 S. Ct. 2492 (2012)
271. Farmers Branch, Tex., Ordinance 2903 (Jan. 22, 2007), available at https://www.farmersbranch.info/sites/default/files/Ordinance %20No%202903.pdf, invalidated by Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858 (N.D. Tex. 2008).
272. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
273. Currently, several suits concerning the laws of a number of jurisdictions are making their way through the appeals process. Most notably, the Supreme Court decided Arizona v. United States, 132 S. Ct. 2492 (2012)
274. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
275. See Whiting, 131 S. Ct. at 1981 (upholding Arizona's licensing law on the grounds that it "falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted"); Keller v. City of Fremont, 719 F.3d 931, 941 (8th Cir. 2013) (upholding city's rental ordinance against preemption challenge).
276. Whiting, 131 S. Ct. at 1977 ("When a federal law contains an express preemption clause, we 'focus on the plain wording of the clause....' IRCA expressly preempts States from imposing 'civil or criminal sanctions' on those who employ unauthorized aliens, 'other than through licensing and similar laws.'" (citations omitted).
277. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
278. Arizona v. United States, 132 S. Ct. 2492, 2514 (2012) (Scalia, J., concurring in part and dissenting in part) ("In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States' traditional role in regulating immigration-and to overlook their sovereign prerogative to do so. ").
279. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
280. See, e.g., Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1261-62 (2009) (discussing autonomy and cooperative federalism models as competing theoretical frameworks for federalism)
281. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev. 698, 744 (2011) ("Properly understood, federalism is a means to an end. A federal system is desirable not for its own sake, but because decentralized decision making is thought to have various desirable consequences. ")
282. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 Iowa L. Rev. 243, 266 (2005) ("[C]ommentators generally offer a variety of presumed benefits, clustering around five areas: responsive governance, governmental competition, innovation, participatory democracy, and resisting tyranny. ").
283. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
284. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
285. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
286. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
287. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
288. We note that a politicized model of subfederal immigration regulation may actually serve to increase democratic participation by the polity, by galvanizing local citizenry in support of such legislation.
289. Again, we note that we are not calling for the invalidation of all subfederal immigration lawmaking. There may be other justifications and defenses for these laws. Here we only note that-to the extent those laws are defended on federalism-value-promoting grounds-our empirical investigation undermines some of those justifications.
290. Pew Research Ctr., Unauthorized Immigrant Population: National and State Trends, 2010, at 23 tbl. A3 (2011), available at http://www.pewhispanic.org/2011/02/ 01/unauthorized-immigrant-population-brnational-and-state-trends-2010/.
291. See N.M. Sec'y of State, Voter Registration Statistics Report (June 28, 2013), available at http://www.sos.state.nm.us/uploads/FileLinks/2966cef424224c59b1abaf 5b30a91116/STATEWIDE6282012.pdf (providing voter registration statistics by district).
292. 2 U.S.C. §§ 1501-1571 (2012).
293. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
294. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
295. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
296. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) ("[A] single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. ").
297. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
298. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
299. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
300. 2 U.S.C. §§ 1501-1571 (2012).
301. see also Josh Gerstein, South Carolina Law Sparks Suit from Justice Department, Politico (Oct. 31, 2011, 4:36 PM) http://www.politico.com/news/stories/1011/67274.html ("Pushing undocumented individuals out of one state and into another is simply not a solution to our immigration challenges." (quoting Assistant U.S. Attorney General Tony West).
302. 2 U.S.C. §§ 1501-1571 (2012).
303. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
304. cf. Barak Y. Orbach et al., Arming States' Rights, 52 Ariz. L. Rev. 1161, 1180-83 (2010) (discussing the proliferation of cloned Firearms Freedom Acts in states across the country). To be clear, we have argued that the policies actually accrete punitive provisions from enactment to enactment. We argue that they are largely the same, with each subsequent jurisdiction and variation generally increasing enforcement possibilities.
305. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
306. 2 U.S.C. §§ 1501-1571 (2012).
307. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
308. Professor Heather Gerken argues that S.B. 1070 led to federal engagement on immigration issues. Heather K. Gerken, The Supreme Court, 2009 Term-Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 6, 68 (2010) (arguing that Arizona's S.B. 1070 finally galvanized national debate and forced national elites to engage the issue). It is worth noting that the engagement Gerken cites in support of her argument is federal judicial engagement. Specifically, she explains how S.B. 1070 led the United States Department of Justice to sue Arizona. Arizona v. United States, 132 S. Ct. 2492 (2012).
309. 2 U.S.C. §§ 1501-1571 (2012).
310. Angela M. Banks, The Trouble with Treaties: Immigration and Judicial Review, 84 St. John's L. Rev. 1219, 1228 (2010).
311. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
312. See Cindy D. Kam & Robert A. Mikos, Do Citizens Care About Federalism? An Experimental Test, 4 J. Empirical Legal Stud. 589, 620 (2007) (presenting evidence that political elites' use of the tropes of trust in state government and federalism beliefs negatively influences support for federal policies).
313. 2 U.S.C. §§ 1501-1571 (2012).
314. Cf. Villas at Parkside Partners v. City of Farmers Branch, No. 10-10751, 2013 WL 3791664, at *30 (5th Cir. July 22, 2013) (Higginson, J., concurring) ("I would point out that several other constitutional claims, under due process, equal protection, and the Privileges and Immunities and Commerce Clauses, were raised by the plaintiffs below but not reached by the district court.").
315. Harold H. Koh, Equality with a Human Face, 8 Hamline L. Rev. 51, 55-56 (1985).
316. See Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (excluding admission of Chinese laborers to the United States) (repealed 1943); Immigration Act of 1924, ch. 190, 43 Stat. 153 (establishing a quota system that limited immigration from Southern and Eastern Europe) (repealed 1952); Immigration Act of 1917, ch. 29, § 19, 39 Stat. 889, 890 (restricting immigration from Asia, and also known as the "Asiatic Barred Zone Act") (repealed 1952); Naturalization Act of 1870, ch. 254, 16 Stat. 254 (repealed 1943).
317. See 8 U.S.C. §§ 1152-1153 (providing yearly limitation of visas determined on a percountry basis, and providing formula for calculating visa allocation by country).
318. See generally Kevin R. Johnson, The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law & Contemp. Probs. 1 (2009) (describing how U.S. immigration law excludes poor noncitizens of color)
319. see also Bureau of Consular Affairs, U.S. Dep't of State, Visa Bulletin Vol. IX, No. 58, Immigrant Numbers for July 2013 (2013), available at http://www.travel.state.gov/visa/bulletin/bulletin_5993. html (illustrating the oversubscription of visa applicants from China, India, Mexico, and the Philippines).
320. See, e.g., Mathews v. Diaz, 426 U.S. 67 (1976) (upholding federal law conditioning federal public assistance on citizenship status, despite the Court having earlier struck down state laws that did the same in Graham v. Richardson, 403 U.S. 365 (1971)
321. Fong Yue Ting v. United States, 149 U.S. 698 (1893) (upholding federal deportation law requiring Chinese residents to produce a credible White witness to attest to their lawful presence).
322. See Cabell v. Chavez-Salido, 454 U.S. 432, 436-44 (1982) (recounting in detail the Court's decisions that applied equal protection to alienage and applying equal protection to the California statute at issue); Graham, 403 U.S. 365, 372 (striking down state law relying, in part, on equal protection grounds)
323. Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (striking down city laundry ordinance on equal protection grounds).
324. 457 U.S. 202 (1982).
325. Hiroshi Motomura, The Rights of Others: Legal Claims and Immigration Outside the Law, 59 Duke L.J. 1723, 1731-34 (2010) (noting the limited impact of Plyler v. Doe, 457 U.S. 202 (1982), on later decisions).
326. Plyler, 457 U.S. at 223.
327. Toll v. Moreno, 458 U.S. 1, 11 n.16 (1982) (citing David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 Stan. L. Rev. 1069 (1979) (arguing that the Court's alienage decisions are better understood as preemption cases).
328. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
329. see also Garrett Epps, The Blessed Tedium of the Arizona Immigration Case, Atlantic (July 29, 2010, 9:58 AM), http://www.theatlantic.com/ national/archive/2010/07/the-blessed-tedium-of-the-arizona-immigration-case/60585/ (criticizing the district court's lack of attention to equality and dignity concerns, and strict focus on preemption and federalism analysis).
330. Transcript of Oral Argument at 33-34, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11-182), 2012 WL 1425227, at *33.
331. See, e.g., Karla Mari McKanders, Immigration Enforcement and the Fugitive Slave Acts: Exploring Their Similarities, 61 Cath. U. L. Rev. 921, 947-49 (2012) (detailing similarities between laws regulating slaves and laws regulating migrants)
332. Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493 (2001) (discussing state discrimination against immigrants in welfare benefits).
333. Complaint, United States v. Maricopa County, No. 2:12-cv-00981-ROS (D. Ariz. May 10, 2012), available at http://docs.justia.com/cases/federal/district-courts/arizona/ azdce/2:2012cv00981/700133/1/0.pdf?1336693795
334. Jerry Seper, Justice Dept. Accuses Ariz. Sheriff Arpaio of Racial Profiling, Wash. Times (May 10, 2012), http://www.washingtontimes. com/news/2012/may/10/justice-department-plans-sue-ariz-sheriff-arpaio/
335. see also Melendres v. Arpaio, No. PHX-CV-07-02513-GMS, 2013 WL 2297173 (D. Ariz. May 24, 2013) (finding that class action plaintiffs were entitled to injunctive relief from Maricopa County Sheriff's Office for Fourth and Fourteenth Amendment violations and permanently enjoining the County from other enforcement actions).
336. See, e.g., Michael A. Olivas, Lawmakers Gone Wild?, 61 S.M.U. L. Rev. 99, 131 (2008) (describing English-only laws and local ordinances requiring immigration status check for residential rentals as "sure signs of an ethnic and national origin 'tax' that will be levied only on certain groups")
337. Michael A. Olivas, The Political Efficacy of Plyler v. Doe, 45 U.C. Davis L. Rev. 1, 15 (2011) ("Blowback in affected communities and increased prejudice are sure to follow from sub-federal assumption of immigration powers. ").
338. 2010 Ariz. Sess. Laws 450 (changing S.B. 1070 text from "lawful contact" to "lawful stop, attention, or arrest" and removing "solely" from "may not solely consider race, color, or national origin"), available at http://www.azleg.gov/alispdfs/council/SB1070-HB2162. PDF.
339. See, e.g., Muneer I. Ahmad, A Rage Shared by Law, 92 Cal. L. Rev. 1261 (2004) (tracing a genealogy of racial violence post-September 11)
340. Leti Volpp, The Citizen and the Terrorist, 49 U.C.L.A. L. Rev. 1575, 1575 (2002) (discussing the racialized conception of those identified as "Middle Eastern, Arab, or Muslim" after September 11, regardless of citizenship status).
341. See, e.g., United States v. South Carolina, 840 F. Supp. 2d 898, 905 (D.S.C. 2011) ("The South Carolina General Assembly took up the matter of state immigration legislation... because of a perceived failure of the United States to 'secure our southern border,' which 'really jeopardize[s] our national security.'" (citations omitted), modified, 906 F. Supp. 2d 463 (D.S.C. 2012), aff'd, 720 F.3d 518 (4th Cir. 2013).
342. See J.D. Hayworth & Joseph J. Eule, Whatever It Takes: Illegal Immigration, Border Security, and the War on Terror 5-8 (2006) (discussing the possibility of terrorists sneaking in through the U.S.-Mexico border).
343. CNN's Lou Dobbs Tonight frequently made the linkages between granting state driver's licenses to illegal immigrants and terrorist threats to homeland security. See, e.g., Lou Dobbs Tonight (CNN television broadcast Oct. 17, 2007), transcript available at http:// transcripts.cnn.com/TRANSCRIPTS/0710/17/ldt.01.html ("The governor... will make it easier for law breakers of all sorts-including terrorists-to take advantage of New York State's driver's licenses....").
344. Jennifer M. Chacoń, Unsecured Borders: Immigration Restrictions, Crime Control and National Security, 39 Conn. L. Rev. 1827, 1853 (2007) ("[R]emovals of noncitizens... can be, and frequently are, depicted as national security policy. With regard to border enforcement efforts, the phrase 'border security' has become a ubiquitous descriptive term.... ").
345. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
346. Dan Hopkins, How Accents Influence the Immigration Debate, Wash. Post (Feb. 10, 2013, 12:16 PM), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/02/10/howaccents-influence-the-immigration-debate/ (providing a summary by a political science professor of published work from various scholars on how aversion to foreign languages drives opposition to immigration, particularly among Republicans).
347. Ted Brader et al., What Triggers Public Opposition to Immigration? Anxiety, Group Cues, and Immigration Threat, 52 Am. J. Pol. Sci. 959 (2008).
348. Karthick Ramakrishnan et al., Illegality, National Origin Cues, and Public Opinion on Immigration (2010) (working paper), available at http://polisci.osu.edu/sites/polisci.osu. edu/files/_illegality,%20national%20origin%20cues,%20and%20public%20opinion%20on %20immigration_.pdf (noting that Americans view Mexican immigrants less favorably than immigrants from other parts of the world).
349. United States v. South Carolina, No. 12-1096, 2013 WL 3803464, at *8 (4th Cir. July 23, 2013) (upholding preliminary injunction of state law criminalizing, inter alia, possession of counterfeit immigration documents).
350. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
351. See Washington v. Davis, 426 U.S. 229 (1976) (explaining that evidence of disparate impact alone is insufficient to satisfy the constitutional standard required for a finding of a racial classification).
352. See Hunter v. Underwood, 471 U.S. 222 (1985) (invalidating Alabama's felony disenfranchisement law based on evidence that the provision was created to disproportionately affect poor Black citizens).
353. See Davis, 426 U.S. at 240-41 (describing cases holding that racial discrimination claims require showing a discriminatory purpose).
354. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
355. See Ariz. Dream Act Coal. v. Brewer, No. CV12-02546 PHX DGC, 2013 WL 2128315, at *24 (D. Ariz. May 16, 2013). Note, however, that the trial court nevertheless denied the motion for preliminary injunction because it found that, although plaintiffs had shown a likelihood of success on the merits of the claim, they failed to show irreparable injury and therefore did not meet the standard for preliminary injuction.
356. See Civil Rights Act of 1964, 46 U.S.C. § 2000d (2006) (prohibiting discrimination in any program receiving federal assistance).
357. It is worth noting that not every case would be amenable to judicial consideration of individual liberty claims. For instance, the federal government would likely not have standing to advance equal protection claims in many cases. However, some cases are brought by private individuals who would have standing to advance such claims, and in many cases involving the federal government, courts have consolidated companion cases involving private plaintiffs. See, e.g., United States v. South Carolina, 840 F. Supp. 2d 898, 904 (D.S.C. 2011) (considering claims by a private party and the federal government against state immigration law), aff'd, 720 F.3d 518 (4th Cir. 2013).
358. See United States v. Arizona, 132 S. Ct. 2492 (2012).
359. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).
360. See Buquer v. City of Indianapolis, No. 1:11-cv-00708-SEB-MJD, 2013 WL 1332158, at *8-9 (S.D. Ind. Mar. 28, 2013) (halting enforcement of S.B. 1070 "copycat" legislation).
361. See, e.g., Keller v. City of Fremont, 719 F.3d 931, 942 (8th Cir. 2013) (finding that a rental ordinance's provisions were not preempted by federal law); Gray v. City of Valley Park, 567 F.3d 976, 977 (8th Cir. 2009) (affirming the district court's ruling that the city's employment ordinance was not preempted by federal law).
362. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
363. Keller, 719 F.3d at 941 (8th Cir. 2013) (holding that the city's rental ordinance was not preempted by federal law and thus declining to enjoin the law).
364. Alabama's law, for example, contained provisions about the non-enforceability of contracts entered into by undocumented immigrants, in addition to provisions requiring undocumented public school students to identify themselves to school officials. H.B. 56, 2011 Leg., Reg. Sess. (Ala. 2011) (codified in part at Ala. Code § 31-13 (LexisNexis 2011). Georgia's law contained provisions regarding driver's license violations. Ga. Code Ann. § 40-5-20 (2013). None of these provisions existed in the Arizona law.
365. The Court left intact section 2 of S.B. 1070, but left open the possibility that litigants bring a later as-applied challenge to the law if in fact it proved legally problematic in its execution. See Arizona v. United States, 132 S. Ct. 2492, 2510 (2012); Appeals Court Asked to Block Show-Me-Your-Papers Provision of Arizona Anti-Immigrant Law, ACLU (Sept. 14, 2012), http://www.aclu.org/defending-targets-discrimination/appeals-court-asked-blockshow-me-your-papers-provision-arizona.
366. See Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1986-87 & n.10 (2011) (declining to enjoin the 2007 version of the LAWA, which mandated the use of E-Verify for businesses within the state).
367. Cf. Lozano v. City of Hazleton, No. 07-3531, 2013 WL 3855549, at *8-9 (3d Cir. July 26, 2013) (enjoining, despite Whiting, Hazleton's employment verification ordinance on the basis of its broad scope, which included contractors).
368. See United States v. Alabama, 691 F.3d 1269, 1296-97 (11th Cir. 2012) (enjoining provision of H.B. 56 invalidating contracts entered into by unlawfully present immigrants), cert. denied, 133 S. Ct. 2022 (2013).
369. Compare Keller v. City of Fremont, 719 F.3d 931, 942 (8th Cir. 2013) (upholding city's rental ordinance), with Lozano, 2013 WL 3855549 at *8-9 (enjoining city's rental ordinance).
370. See Hispanic Interest Coal. of Ala. v. Alabama, 691 F.3d 1236, 1244-50 (11th Cir. 2012) (enjoining provisions of H.B. 56 that required school officials to check the immigration status of students).
371. 2 U.S.C. §§ 1501-1571 (2012).
372. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
373. 2 U.S.C. §§ 1501-1571 (2012).
374. 2 U.S.C. §§ 1501-1571 (2012).
375. 2 U.S.C. §§ 1501-1571 (2012).
376. Mary Slosson, States Hope to Implement Immigration Laws After Arizona Ruling, Reuters (June 27, 2012).
377. See Dianne Solis, Farmers Branch Has Many Waiting for Its Decision on Its Renters Ordinance Aimed at Illegal Immigration, Dallas Morning News, Aug. 8, 2013, http:// www.dallasnews.com/news/20130808-farmers-branch-has-many-waiting-for-its-decision-onits-renters-ordinance-aimed-at-illegal-immigration.ece (describing financial support for a contested renters' ordinance aimed at illegal immigrants); Numbers USA Donates $100,000 to Help Defend Anti-Immigration Ordinance in Farmers Branch, Texas, Official Blogs from the Anti-Defamation League (Sept. 28, 2012), http://blog.adl.org/civil-rights/ numbers-usa-donates-100000-to-help-defend-anti-immigrant-ordinance-in-famers-branchtexas (describing a $100,000 donation supporting the defense of the Farmers Branch ordinance)
378. Sam Galski, Empire Heir Donates $50,000 to Support Hazleton's Immigration Battle, Republican Herald, May 10, 2013, http://republicanherald.com/news/empireheir-donates-50-000-to-support-hazleton-s-immigration-battle-1.1486915 (reporting Dallas real estate heir Trammell S. Crow's large donation to a fund for the legal defense of Hazleton's ordinance). Undoubtedly, these enactments are not costless. Both the legislative process and subsequent legal defenses entail significant costs for these governmental entities. However, oftentimes, these costs are borne or mitigated by restrictionist advocacy organizations and wealthy individuals who help fund and provide the legal defense for these enactments. See About FAIR, Fed'n Am. Immigr. Reform, http://www.fairus.org/ about (last visited Aug. 31, 2013); Immigration Reform Law Institute: Litigation, Immigr. Reform L. Inst., http://www.irli.org/litigation (last visited Aug. 31, 2013). Kris Kobach was a significant contributor to Arizona's S.B. 1070, and the main author of Alabama's H.B. 56. He is currently of counsel with the Immigration Reform Law Institute, the legal wing of FAIR, and recently represented the city of Fremont in the Keller case.
379. Margery A. Beck, Federal Panel: Neb. City's Immigration Law Legal, A.P. ONLINE (June 28, 2013, 6:24 PM), http://bigstory.ap.org/ article/federal-panel-neb-citys-immigration-law-legal-0.
380. 2 U.S.C. §§ 1501-1571 (2012).
381. Valerie Richardson, Arizona's AG: Court's Ruling Is "A 70% Win, " Wash. Times (June 25, 2012), http://www.washingtontimes.com/news/2012/jun/25/arizonas-ag-courtsruling-is-a-70-win/?page=all (quoting Governor Brewer calling the Supreme Court decision a "victory")
382. Yvonne Wingett Sanchez, Gov. Jan Brewer Claims Victory, AZCentral (June 25, 2012, 1:47 PM), http://www.azcentral.com/news/politics/articles/20120625arizonaimmigration-law-gov-jan-brewer-claims-victory.html (quoting Governor Brewer stating that the Supreme Court had upheld the "heart of the law").
383. Jorge Rivas, Ala. Attorney General Luther Strange Reacts to SCOTUS SB 1070 Ruling, Colorlines (June 25, 2012, 12:58 PM), http://colorlines.com/archives/2012/06/ala_ attorney_general_luther_strange_responds_to_scotus_sb_1070_ruling.html.
384. Paula Dwyer, Hardball at the SEC, Bus. Wk., Sept. 29, 1997, at 50 (explaining congressional backlash against aggressive SEC action).
385. see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge).
386. See Magdalena Szumilas, Explaining Odds Ratios, 19 J. Can. Acad. Child Adolescent Psychiatry 227, 227-29 (2010) ("When a logistic regression is calculated, the regression coefficient (b1) is the estimated increase in the log odds of the outcome per unit increase in the value of the exposure. In other words, the exponential function of the regression coefficient (eb1) is the odds ratio associated with a one-unit increase in the exposure. ").
387. Michael Tomz et al., ReLogit: Rare Events Logistic Regression, Gary King, http:// gking.harvard.edu/relogit (last visited Aug. 31, 2013).
388. See ReLogit: Rare Events Logistic Regression Package Description, http://www. stanford.edu/~tomz/software/software.shtml (last visited Oct. 1, 2013).
389. Information retrieved on January 12, 2012 from FindLaw, a Thomson Reuters resource on cases and statutes. State Immigration Laws, FindLaw, http://immigration. findlaw.com/immigration-laws-and-resources/state-immigration-laws/.