Divided we stand: Constitutionalizing executive immigration reform through subfederal regulation

Columbia Law Review

Volumn 115, Issue 8, 2015, Pages 2219-2264

  Figueroa Santana, Bianca ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 84949259263     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (223)

1. Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J., concurring in part and dissenting in part).
2. See, e.g., Texas v. United States, 86 F. Supp. 3d 591, 634 (S.D. Tex. 2015) (“[T]here are many individuals each year that self-deport from the United States and return to their homeland.”); Arizona’s Immigration Law Is Back in Court, “Self-Deportation” on the Rise, Pub. Radio Int’l (Apr. 26, 2012, 9:00 AM), http://www.pri.org/stories/2012-04-26/arizonas-immigration-law-back-court-self-deportation-rise [http://perma.cc/4QZ4-LAQY] (explaining term “self-deportation,” which “started out as a joke made by Mexican-American satirist Lalo Alcaraz,” has “becom[e] a catch-phrase for supporters of anti-illegal immigration legislation”).
3. See S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010) (declaring intent of Arizona’s infamous SB 1070 “is to make attrition through enforcement the public policy of all state and local government agencies in Arizona”); David S. Rubenstein, Immigration Structuralism: A Return to Form, 8 Duke J. Const. L. & Pub. Pol’y 81, 119 (2013) (“Restrictionist laws embodying the ‘attrition-through-enforcement’ philosophy are purposefully designed to encourage the self-deportation of unauthorized immigrants.”). See generally Kris W. Kobach, Attrition Through Enforcement: A Rational Approach to Illegal Immigration, 15 Tulsa J. Comp. & Int’l L. 155, 156 (2008) (describing theoretical justifications for attrition-through-enforcement policy).
4. See generally Jeanne Batalova et al., DACA at the Two-Year Mark: A National and State Profile of Youth Eligible and Applying for Deferred Action, Migration Policy Inst. 2 (2014), http://www.migrationpolicy.org/sites/default/files/publications/DACA-Report-2014-FINALWEB.pdf [http://perma.cc/VZG8-YN6Y] (concluding DACA has facilitated “significant milestones on the path to economic self-sufficiency that previously had been closed to most unauthorized immigrant youth”); Tom K. Wong & Carolina Valdivia, In Their Own Words: A Nationwide Survey of Undocumented Millennials 3 (2014), http://media.wix.com/ugd/bfd9f2_4ac79f01ab9f4247b580aeb3afd3da95.pdf [http://perma.cc/ZD6H-ZDT7] (reporting 64% of survey respondents felt greater sense of belonging in United States after becoming “DACAmented” and identical percentage expressed “they are no longer afraid because of their immigration status” (internal quotation marks omitted)).
5. See generally Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs., & John Morton, Dir., U.S. Immigration & Customs Enf’t (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [http://perma.cc/6RSK-2ELK] (announcing DACA and detailing corresponding changes in enforcement policies); Stephen Collinson, Defiant Obama Says He Won’t Bend to GOP, CNN (Nov. 17, 2014, 9:17 AM), http://www.cnn.com/2014/11/16/politics/obama-congress [http://perma.cc/D7MZ-D5EZ] (quoting President Obama, who stated with respect to immigration reform, “I can’t wait in perpetuity when I have authorities that at least for the next two years can improve the system”).
6. See Memorandum from Jeh Charles Johnson, Sec’y of Homeland Sec., to León Rodríguez, Dir., U.S. Citizenship & Immigration Servs., Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf’t, & R. Gil Kerlikowske, Comm’r, U.S. Customs & Border Prot. 3–5 (Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf [http://perma.cc/KBJ4-47NC] (announcing substantive changes in Executive’s deferred action policy). Originally, only those “who entered the United States before June 15, 2007,” while “under the age of 16” and who remained “under the age of 31 on June 15, 2012,” were eligible for DACA. Id. at 3. Under the revised policy announced in 2014, those who entered the United States prior to January 1, 2012, became eligible “regardless of how old they were in June 2012 or are today.” Id. at 3–4. The Administration also extended the period of deferred removal from two years to three. Id.
7. The Southern District of Texas enjoined both expansions soon after their announcement. See Texas, 86 F. Supp. 3d at 646–77 (granting injunction after finding plaintiffs likely to succeed in challenging legality of DACA expansion and DAPA). The Fifth Circuit affirmed the District Court’s preliminary injunction on November 9, 2015. See Texas v. United States, No. 15-40238, 2015 WL 6873190, at *1 (5th Cir. Nov. 9, 2015) (“[W]e affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.”). The Obama Administration has sought Supreme Court review. See Seung Min Kim & Josh Gerstein, Obama Administration Takes Immigration Battle to Supreme Court, Politico (Nov. 20, 2015, 10:15 AM), http://www.politico.com/story/2015/11/obama-immigrationsupreme-court-216100 [http://perma.cc/L366-J4BX] (describing Administration’s reaction to Fifth Circuit ruling).
8. Alicia Parlapiano, What Is President Obama’s Immigration Plan?, N.Y. Times (Nov. 20, 2014), http://www.nytimes.com/interactive/2014/11/20/us/2014-11-20-immigration.html (on file with the Columbia Law Review) (presenting data on new DACA policy).
9. An estimated 11.2 million unauthorized individuals reside in the United States. See Jeffrey S. Passel & D’Vera Cohn, Pew Research Ctr., Unauthorized Immigrant Totals Rise in 7 States, Fall in 14, at 6 (2014), http://www.pewhispanic.org/files/2014/11/2014-11-18_unauthorized-immigration.pdf (on file with the Columbia Law Review) (“Nationally, the population of 11.2 million unauthorized immigrants in 2012 was unchanged from 2009....”). Of those, approximately 5.3 million are eligible for DACA. See supra text accompanying notes 5–7.
10. See, e.g., Daniel A. Arellano, Keep Dreaming: Deferred Action and the Limits of Executive Power, 54 Ariz. L. Rev. 1139, 1145–50 (2012) (“Immigration authorities have explicitly acknowledged their power to exercise prosecutorial discretion in the form of deferred action in immigration enforcement since 1975.” (citing Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 282 (2010))); see also Greg Sargent, How Far Can Obama Go on Deportations?, Wash. Post (Aug. 6, 2014), http://www.washingtonpost.com/blogs/plum-line/wp/2014/08/06/howfar-can-obama-go-on-deportations [http://perma.cc/N55K-B6FU] (transcribing interview with former acting counsel for Department of Homeland Security, who stated “ICE officers have always exercised discretion and always implemented priorities” and “[l]ongstanding law already allows for individuals... granted deferred action to gain work authorization”). President Obama has defended his actions as “not only lawful” but also “the kinds of actions taken by every single Republican president and every Democratic president over the past half-century.” Michael D. Shear, Obama, Daring Congress, Acts to Overhaul Immigration, N.Y. Times (Nov. 20, 2014), http://www.nytimes.com/2014/11/21/us/obama-immigration-speech.html (on file with the Columbia Law Review).
11. See, e.g., Amended Complaint for Declaratory and Injunctive Relief at 24, Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (No. 1:14-cv-254), 2014 WL 7497780, at 24 (alleging, in contesting constitutionality of DACA expansion and DAPA, “Plaintiff States will be forced to expend substantial resources on law enforcement, health care, and education”); Malia Zimmerman, Elusive Crime Wave Data Shows Frightening Toll of Illegal Immigrant Criminals, Fox News (Sept. 16, 2015), http://www.foxnews.com/us/2015/09/16/crime-wave-elusive-data-shows-frightening-toll-illegal-immigrant-criminals [http://perma.cc/U9P3-S5TY] (“[L]ocal, state and federal statistics... show illegal immigrants are three times as likely to be convicted of murder as members of the general population and account for far more crimes than their 3.5-percent share of the U.S. population would suggest.”); cf. CNN Tea Party Debate Transcript Part 4 – #CNNTeaParty, CNN (Sept. 13, 2011), http://www.politisite.com/2011/09/13/cnn-tea-party-debate-transcript-part-4-cnnteaparty [http://perma.cc/PER2-BRSH] (transcribing statement by Michele Bachmann that “American way is not to give taxpayer subsidized benefits to people who have broken our laws or who are here... illegally” and advocating for “people [to] come... with sponsors so... they don’t fall back on the taxpayers to take care of them”); Full Transcript: Undercard GOP Debate, Wash. Post (Sept. 16, 2015), http://www.washingtonpost.com/news/post-politics/wp/2015/09/16/running-transcript-undercard-gop-debate [http://perma.cc/NR5M5U5J] (reproducing statement by Rick Santorum that wages of U.S. workers are “flatlining” because “70 to 90 percent of people who’ve come into this country... are wage earners that are holding wages down, taking jobs away from America”); id. (relating statement by Bobby Jindal that “immigration without assimilation is invasion”); Wednesday’s GOP Debate Transcript, Annotated, Wash. Post (Sept. 16, 2015), http://www.washingtonpost.com/news/the-fix/wp/2015/09/16/annotated-transcript-september-16-gop-debate [http://perma.cc/GZQ8-JA6Z] (documenting claim by Donald Trump that “we have a lot of really bad dudes in this country from outside,” which has led to “gangs all over the place”).
12. See, e.g., Amended Complaint at 20, Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) (No. 3:12-cv-03247-O), 2012 WL 5199509 (claiming DACA “is a legislative act” that “usurps the legislative authority conferred by the Constitution exclusively on Congress”); Julia Preston & John H. Cushman, Jr., Obama to Permit Young Migrants to Remain in U.S., N.Y. Times (June 15, 2012), http://www.nytimes.com/2012/06/16/us/usto-stop-deporting-some-illegal-immigrants.html?pagewanted=all&_r=0 (on file with the Columbia Law Review) (reporting statement of Senator Charles E. Grassley of Iowa that “[P]resident’s action [of initiating DACA] is an affront to the process of representative government by circumventing Congress and with a directive [the President] may not have the authority to execute”); Court Rules DACA Is Likely Unconstitutional: FAIR Calls upon the Administration or Congress to End Backdoor Amnesty Program, PRNewswire (Aug. 1, 2013), http://www.prnewswire.com/news-releases/court-rules-daca-is-likely-unconstitutional-218012601.html [http://perma.cc/URX6-73DD] (relating statement of president of Federation for American Immigration Reform that “DACA clearly preempts the Legislative Branch’s exclusive authority to determine our immigration laws and it must be terminated” (internal quotation marks omitted)).
13. See infra Part III (discussing differing opinions as to DACA’s constitutionality).
14. See, e.g., Simeon Lancaster, As ‘Dreamers’ Renew Status, They Face Both Opportunities and Fears, MinnPost (Oct. 2, 2014), http://www.minnpost.com/politics-policy/2014/10/dreamers-renew-status-they-face-both-opportunities-and-fears [http://perma.cc/4TJU-LGN7] (“‘I just can’t comprehend my life without DACA or being able to contribute to this country the way I am now.’”).
15. Plyler v. Doe, 457 U.S. 202, 218–19 (1982).
16. Lauren Gilbert, Obama’s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 310 (2013).
17. Arellano, supra note 10, at 1140.
18. See, e.g., Rubenstein, supra note 3, at 87 (emphasizing nonbinding nature of unilateral executive action and concluding discretionary policies such as DACA do not preempt subfederal immigration policy); Josh Blackman, Gridlock and Executive Power 40–42, 55 (July 15, 2014) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466707 (on file with the Columbia Law Review) (using DACA as example of presidential “corrective powers” and concluding “[e]xecutive actions cannot be justified as a means to evade [congressional] gridlock when legitimate political reforms... could make salutary, permanent, and lawful changes to our system of government”).
19. This Note concurs with Professor Stella Burch Elias’s definition of “immigration federalism.” See Stella Burch Elias, The New Immigration Federalism, 74 Ohio St. L.J. 703, 706 (2013) (arguing term “encompass[es] all multi-governmental rulemaking pertaining to immigrants and immigration... undertaken by various government entities acting in cooperation with or in opposition to one another”).
20. U.S. 579, 635–38 (1952) (Jackson, J., concurring in the judgment) (delineating three zones of presidential power).
21. See, e.g., Gerald L. Neuman, The Lost Century of American Immigration Law (1776–1875), 93 Colum. L. Rev. 1833, 1839 (1993) (“[M]odern immigration law is permeated with the assumption that regulating immigration is inherently a federal activity....”).
22. See, e.g., Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States 18 (2006) [hereinafter Motomura, Americans in Waiting] (“The Constitution authorizes Congress ‘to establish a uniform Rule of Naturalization.’ Perhaps power to naturalize includes power to regulate immigration, but the Constitution does not say this.”); Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787, 792, 811–12 (2008) (“The text and structure of the Constitution allow for shared [immigration] authority.... [T]here is no clear commitment in the text or institutional structures of the Constitution to federal exclusivity.”); Karla Mari McKanders, The Constitutionality of State and Local Laws Targeting Immigrants, 31 U. Ark. Little Rock L. Rev. 579, 581 (2009) (“The U.S. Constitution contains no language that expressly grants Congress the power to regulate immigration. The Constitution only gives Congress the express power to create a uniform rule of naturalize tion.”); cf. Linda S. Bosniak, Immigrants, Preemption and Equality, 35 Va. J. Int’l L. 179, 179–80 (1994) [hereinafter Bosniak, Immigrants, Preemption, and Equality] (remarking “principle that only the federal government can legitimately make and enforce immigration policy” is “based on the now-outmoded premise that the conduct of foreign relations must remain the exclusive preserve of the federal government”).
23. See Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 255, 260 [hereinafter Legomsky, Plenary Congressional Power] (remarking “[i]mmigration law is a constitutional oddity” and “an area in which the normal rules of constitutional law simply do not apply”); Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 1 (1984) [hereinafter Schuck, Transformation] (“Immigration has long been a maverick, a wild card, in our public law. Probably no other area of American law has been so radically insulated and divergent from those fundamental norms of constitutional right, administrative procedure, and judicial role that animate the rest of our legal system.”). In the past two hundred years, the Supreme Court has articulated various divergent justifications for plenary power. Some are textual in nature: the Commerce Clause, the Naturalization Clause, and the foreign affairs power, for example. See U.S. Const. art. I, § 8; Edwards v. California, 314 U.S. 160, 173 (1941) (classifying interstate movement of people as commerce regulable by Congress); Chae Chan Ping v. United States, 130 U.S. 581, 605–06 (1889) (associating power to regulate immigration with power to regulate foreign affairs). Others flow from structural interpretations of the Constitution, including sovereign prerogative, necessity, and national identity. See Chae Chan Ping, 130 U.S. at 609 (characterizing “power of exclusion of foreigners” as “incident of sovereignty”); Thomas Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy 192–93 (7th ed. 2012) (suggesting United States would lose right to self-determination absent plenary power doctrine).
24. See, e.g., Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925, 937 (1994) (predicting “[u]nlikely as the Court is to abolish the plenary power doctrine outright, it can, and probably will, give us [plenary power doctrine]-lite”); Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 Va. J. Int’l L. 201, 202–05 (1994) [hereinafter Motomura, Immigration and Alienage] (describing “slow erosion of the plenary power doctrine”).
25. See James E. Hickey, Jr., Localism, History and the Articles of Confederation: Some Observations About the Beginning of U.S. Federalism, 9 Ius Gentium 5, 9 (2003) (“The American colonies essentially governed themselves under royal charters from England.... Local authority in towns and counties was pervasive and was exercised in almost every sphere....”); Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C. L. Rev. 1557, 1566–69 (2008) (stating colonies and early states “[c]ontroll[ed] the movement of people across their borders”); Gordon S. Wood, The First National Constitution of the United States, in Government Structures in the U.S.A. and the Sovereign States of the Former U.S.S.R. 12, 12 (James E. Hickey, Jr. & Alexej Ugrinsky eds., 1996) (“All the colonies in the seventeenth century experienced an acute localization of authority.”).
26. Emberson Edward Proper, Colonial Immigration Laws: A Study of the Regulation of Immigration by the English Colonies in America 17 (1900) (explaining settlements “differed fundamentally in character and purpose”). For a detailed survey of colonial immigration law, see id. at 21–72 (analyzing laws of Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Virginia, Maryland, North Carolina, South Carolina, and Georgia).
27. See Hickey, supra note 25, at 10 (explaining localism “translated rather easily into concepts of individual state sovereignty” under Articles of Confederation).
28. See 2 The Records of the Federal Convention of 1787, at 271 (Farrand ed., 1911) [hereinafter Records of the Federal Convention] (“The States have formed different qualifications themselves, for enjoying different rights of citizenship.”); see also Articles of Confederation of 1781, art. II (providing “[e]ach state retains its sovereignty, freedom, and independence”).
29. Articles of Confederation of 1781, art. IV.
30. See The Federalist No. 42, at 270 (James Madison) (Clinton Rossiter ed., 1961) (arguing Articles’ privileges and immunities clause granted states “very improper power... of naturalizing aliens in every other State”).
31. See id. (stating under Articles “free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State”).
32. See id. (“In one State, residence for a short term confirms all the rights of citizenship: in another, [more is] required. An alien... incapacitated for… rights in the latter, may, by previous residence … in the former, elude his incapacity; [rendering] the law of one State … paramount to the law of another … .”).
33. See id. at 269–71 (discussing Articles of Confederation and commenting “dissimilarity in the rules of naturalization has long been remarked as a fault in our system”).
34. See id. at 270 (“We owe it to mere casualty that very serious embarrassments on this subject have been hitherto escaped … . Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature not to be provided against.”).
35. See The Federalist No. 10, at 77 (James Madison) (Clinton Rossiter, ed., 1961) (explaining “[a]mong the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than” its ability to combat factionalism). 36. Id.
36. The Federalist No. 42, supra note 30, at 270–71.
37. The Supreme Court announced as much in Chirac v. Chirac, observing “the law of the state of Maryland, according to which [the plaintiff] took the oaths of citizenship [was] virtually repealed by the constitution of the United States, and the [1790] act of naturalization enacted by congress.” 15 U.S. (2 Wheat.) 259, 269 (1817).
38. See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625, 1626 (1992) [hereinafter Motomura, Curious Evolution] (“‘Immigration law,’ which is commonly defined as the federal law governing the admission and expulsion of aliens, did not exist in this country until 1875.” (footnote omitted)); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 550 (1990) [hereinafter Motomura, Phantom Norms] (“The story of the plenary power doctrine’s role in constitutional immigration law begins with the Supreme Court’s 1889 decision in the Chinese Exclusion Case.”); see also, e.g., Ex Parte Knowles, 5 Cal. 301, 303–06 (1855) (holding state as well as federal courts have ability to naturalize citizens); Stumpf, supra note 25, at 1570 (“The early 1800s was an era marked by the joint exercise of federal and state power over immigration.”).
39. See, e.g., Kai Bartolomeo, Immigration and the Constitutionality of Local Self Help: Escondido’s Undocumented Immigrant Rental Ban, 17 S. Cal. Rev. L. & Soc. Just. 855, 858 (2008) (“Rather than a comprehensive system of federal immigration legislation, the federal government shared its regulatory power with the states.” (citing Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 119 (1997))). Congress also acquiesced to state regulation in more explicit ways. For example, under the Articles, a “first cautious step that avoided the appearance of” federal intrusion “in an area previously under the control of each colony was a resolution” in September 1788, which encouraged states to “pass proper laws for preventing the transportation of [convicts] from foreign countries.” E.P. Hutchinson, Legislative History of American Immigration Policy 1798–1965, at 11 (1981) (internal quotation marks omitted) (quoting Journals of Congress, 13:105–6). “[T]he resolution was … a tacit recognition of state jurisdiction over immigration … .” Id. “In later years, after the federal Constitution had taken effect, further states enacted similar legislation, and states that already had such legislation reenacted or amended their provisions.” Neuman, supra note 21, at 1843.
40. For a comprehensive account of state immigration legislation from 1776–1875, see generally Neuman, supra note 21. States did not necessarily relish this role. Massachusetts legislators, for example, apparently uncertain in the face of congressional silence as to “how far they could go in restricting immigrants’ territorial rights without violating the Constitution,” petitioned Congress to pass legislation capable of remedying the practice of “foreign pauper dumping.” Kunal M. Parker, State, Citizenship, and Territory: The Legal Construction of Immigrants in Antebellum Massachusetts, 19 Law & Hist. Rev. 583, 608 & n.64 (2001); cf. Neuman, supra note 21, at 1843 (“The federal government was slow to take action to exclude foreign convicts.”).
41. See Hiroshi Motomura, Immigration Outside the Law 66 (2014) [hereinafter Motomura, Outside the Law] (“The vastness of the expanding nation and the rudimentary nature of communication and transportation precluded comprehensive immigration control.”).
42. See Motomura, Americans in Waiting, supra note 22, at 19 (“Attitudes early in the 1800s favored a sustained flow of immigrants … . The reasons were largely economic, with immigrant labor badly needed to settle the new land … .”); see also Henderson v. Mayor of the City of N.Y., 92 U.S. 259, 270 (1875) (acknowledging immigrants bring “labor which we need to till our soil, build our railroads, and develop the latent resources of the country in its minerals, its manufactures, and its agriculture”).
43. See Motomura, Americans in Waiting, supra note 22, at 19.
44. See Motomura, Outside the Law, supra note 42, at 66 (“[S]ettler society was shaped regionally and locally.”); id. (explaining territorial governments “recruit[ed] the desirable” and “kep[t] out the unwanted”).
45. Neuman, supra note 21, at 1878–79 (noting because Congress was legally and politically disabled from regulating slave trade, “much was left to the states” and stating many state regulations “may be considered comparable to traditional immigration laws”); id. at 1866 (“Historians have reasonably suggested that a primary cause of the federal government’s failure to adopt qualitative restrictions on immigration before the Civil War was the slave states’ jealous insistence on maintaining power over the movement of free blacks as a states’ right.”).
46. See Motomura, Outside the Law, supra note 42, at 67 (“In the first half of the nineteenth century, Northern states recognized free blacks born in the United States as citizens, but Southern states did not.”).
47. See Elizabeth Beaumont, The Civic Constitution: Civic Visions and Struggles in the Path Toward Constitutional Democracy 124–29 (2014) (internal quotation marks omitted) (quoting 1790 Naturalization Act, ch. 4, 1 Stat. 103 (1790) (repealed 1795)) (describing establishment and development of antebellum “pro slavery constitutional order”). The southern slavocracy also invoked the Tenth Amendment, proclaiming the regulation of freedpersons a matter of state right. See id. at 127 (observing “pro slavery constitutionalists were extremely successful at coopting” concept of states’ rights). This emphasis on states’ rights “skewed the structure of federalism” in states’ favor and “defin[ed] … the limits of Congress’s operation.” Id.; see also id. (“Much of the legal apparatus constricting citizenship operated at the state level, through state constitutions and statutes enforcing slavery in the South and denying rights in the North. But the national constitution permitted this, and placed no limits on states’ abilities to confer or deny citizenship or rights.” (footnote omitted)).
48. Dred Scott v. Sanford, 60 U.S. 393 (1857).
49. See Motomura, Outside the Law, supra note 42, at 67 (“The divide over whether African Americans were property, rather than persons, left the nation unable to speak in one voice on who counted as Americans … .”). This, of course, was the conundrum Justice Taney intended to resolve with his infamously racist opinion in Dred Scott. See 60 U.S. at 403–27 (explaining why African Americans cannot be made citizens of United States). To that end, Justice Taney barred both the states and the federal government from declaring African Americans federal citizens. “The Constitution,” Taney wrote, “took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one.” Id. at 418. With regard to the federal government, he concluded, “[the] power granted to Congress to establish an uniform rule of naturalization” is “not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior or subordinate class.” Id. At 417.
50. See Motomura, Outside the Law, supra note 42, at 69 (stating Civil War “allowed immigration regulation to become exclusively federal” and “established the primacy of national citizenship”).
51. See, e.g., Henderson v. Mayor of the City of N.Y., 92 U.S. 259, 274–75 (1875) (striking down head taxes on arriving immigrants and reasoning “this whole subject [of foreign commerce] has been confided to Congress by the Constitution”); Passenger Cases, 48 U.S. (7 How.) 283, 394 (1849) (deeming power “to establish a uniform rule of naturalization” among one of several powers “beyond State jurisdiction”); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197–200, 215–16 (1824) (finding transportation of passengers constitutes “commerce” and endorsing federal supremacy over interstate commerce).
52. See 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 … cannot be granted away or restrained on behalf of any one.”).
53. Id.; see also id. at 603, 606 (stating proposition that “government of the United States, through the action of the legislative department, can exclude aliens from its territory is [one] which we do not think open to controversy” and “for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power”); accord Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893) (attributing power over admission and exclusion of immigrants to “national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“[E]very sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”); Knox v. Lee, 79 U.S. (12 Wall.) 457, 555 (1871) (“The United States is … the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, … all which are forbidden to the State governments.”). The key question in Chae Chan Ping boiled down to whether it was “within the power of Congress to prohibit Chinese laborers” who had temporarily departed “from returning to the United States.” 130 U.S. at 603.
54. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.” (internal quotation marks omitted) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909))); Truax, 239 U.S 33, 42 (1915) (“The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government.”).
55. U.S. 88, 101 n.21 (1975) (citing Truax, 239 U.S. at 42).
56. See, e.g., id. (“[T]he power over aliens is of a political character and therefore subject only to narrow judicial review.”).
57. Schuck, Transformation, supra note 23, at 14; see also id. at 14–16 (“With a few exceptions, the Supreme Court reflexively confirmed the deference principle with a decision on the merits in favor of the government … .”).
58. Stumpf, supra note 25, at 1572.
59. See, e.g., 8 U.S.C. § 1252(d)(1) (2012) (limiting judicial review to final, nondiscretionary removal orders and habeas corpus petitions and only once “alien has exhausted all administrative remedies available … as of right”); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as far as the alien denied entry is concerned.”); Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (“As to [aliens], the decisions of executive or administrative officers … are due process of law.”); Schuck, Transformation, supra note 23, at 14 (stating until 1960s “egalitarian potential of the due process and equal protection safeguards of the fifth and fourteenth amendments, especially as applied to aliens, remained largely undiscovered” (footnote omitted)); Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493, 500–18 (2001) (discussing scope of equal protection doctrine in immigration jurisprudence).
60. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 621 (2008); see also Motomura, Outside the Law, supra note 42, at 69 (stating “cascade of federal immigration statutes” and Supreme Court’s plenary power precedent “left virtually no room for states to address immigration without conflicting impermissibly with federal immigration authority”); Huntington, supra note 22, at 788–95 (acknowledging assumption that federal exclusivity in immigration is synonymous with “structural” preemption); Stumpf, supra note 25, at 1573 (observing early plenary power cases “ousted the states from their original role as the primary regulators of the movement of noncitizens” (citing Chy Lung v. Freeman, 92 U.S. 275, 280 (1875); Henderson v. Mayor of New York, 92 U.S. 259, 274 (1875); Smith v. Turner, 48 U.S. (7 How.) 283, 394 (1849))).
61. Schuck, Transformation, supra note 23, at 3; see also, e.g., Legomsky, Plenary Congressional Power, supra note 23, at 255 (“In an undeviating line of cases spanning almost one hundred years, the Court has declared itself powerless to review even those immigration provisions that explicitly classify on such disfavored bases as race, gender, and legitimacy.”).
62. Fong Yue Ting v. United States, 149 U.S. 698, 755 (1892) (Field, J., dissenting); see also id. at 754 (Field, J., dissenting) (lamenting arbitrary circumscription of aliens’ due process rights, writing, “If one rule may lawfully be laid aside …, another rule may also be laid aside, and all rules may be discarded,” which “ignore[s] the teachings of our history, the practice of our government, and the language of our Constitution”). Ironically, it was Justice Field who laid the foundation of plenary power in Chae Chan Ping. See supra note 53 (quoting Court’s plenary power language). However, Chae Chan Ping was intended to define the scope of federal power with respect to arriving aliens, not aliens physically present within the territorial boundaries of the United States. See Chae Chan Ping v. United States, 130 U.S. 581, 589 (1889) (characterizing act at issue as “prohibiting Chinese laborers from entering the United States who had departed before its passage”). In Justice Field’s view, “[t]he moment any human being … comes within the jurisdiction of the United States … he becomes subject to all their laws, is amenable to their punishment and entitled to their protection.” Fong Yue Ting, 149 U.S. at 754; see also Stumpf, supra note 25, at 1578 (“[W]hen the Court first articulated [plenary power], it would have applied only to immigration laws that governed the external borders of the United States … . [T]he Court may have imagined it had granted the federal government a mere sliver of omnipotence.”). In contrast, Fong Yue Ting made no meaningful territorial distinction. As Motomura has explained, in Fong Yue Ting, “the Court further extended plenary power to the deportation of resident aliens already in the United States.” Motomura, Phantom Norms, supra note 39, at 553. Writing for the majority, “[Justice] Gray declined to distinguish between the power to deport and the power to exclude, dismissing the idea that deportation should trigger the more substantial constitutional safeguards associated with ‘punishment.’” Id.
63. See, e.g., Motomura, Phantom Norms, supra note 39, at 546–58 (describing “gradual demise” of plenary power beginning in the 1970s and “corresponding reintegration of our usual expectations regarding judicial review into immigration law”); Schuck, Transformation, supra note 23, at 4 (writing in 1984, “[n]ew principles based upon fundamentally different values are beginning to undermine the classical [immigration] regime and to etch the outlines of a new legal order”).
64. U.S. 52 (1941).
65. Id. at 59 (citing Pa. Stats. Ann., tit. 35, §§ 1801–1806). The statute also required registrants pay a registration fee, produce the registration card “whenever it may be demanded” by qualified law enforcement officers, and “exhibit the card as a condition precedent to registering a motor vehicle” or “obtaining a license to operate one.” Id.
66. See id. at 62 (“That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by The Federalist in 1787, and has since been given continuous recognition by the Court.”); id. at 63 (“The Federal Government … is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties … . [T]he whole nation[] imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.”).
67. Id. at 62.
68. Id. at 68. Ultimately, the majority invalidated the Pennsylvania law, but not because it found the state lacked the power to enact it. See id. at 75 (Stone, J., dissenting) (“The opinion of the Court does not deny, and I see no reason to doubt that the Pennsylvania registration statute, when passed, was a lawful exercise of the constitutional power of the state.”). The Court instead found the law preempted by Congress’s Alien Registration Act, which came into effect a year after the Pennsylvania law. See id. at 68–74 (majority opinion) (holding Pennsylvania registration statute obstacle preempted).
69. Id. at 77 (Stone, J., dissenting).
70. Id. at 80 (Stone, J., dissenting) (“A federal registration act … can stand consistently with a like statute … passed in aid of state laws and as a safeguard to property and persons within the state, as readily as the federal and state laws which annually demand two separate income tax returns … .”).
71. Id. at 75 (Stone, J., dissenting).
72. Motomura, Phantom Norms, supra note 39, at 574.
73. See Margaret Hu, Reverse-Commandeering, 46 U.C. Davis L. Rev. 535, 568–74 (2012) (“[A]s Congress enacted increasingly comprehensive federal immigration laws, a preemption framework evolved as the new norm for evaluating the legality and constitutionality of immigration federalism efforts.”).
74. Wishnie, supra note 60, at 523; see also Huntington, supra note 22, at 795–96 (stating “[i]mmigration law traditionally [encompasses] the rules governing the admission and removal of non-citizens” while “alienage law[] determines the rights and obligations of non-citizens while in the country”); Motomura, Immigration and Alienage, supra note 24, at 202 (“As traditionally understood, ‘immigration law’ concerns the admission and expulsion of aliens, and ‘alienage law’ embraces other matters relating to their legal status.”).
75. Wishnie, supra note 60, at 523 (defining alienage law as “general civil, economic, and social regulation of noncitizens”); see also Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership 38 (2008) (asking, “[w]hat legitimate bearing” sovereign prerogatives have on “treatment of noncitizens … present in our society[,] … residing in the national territory and participating in national life[,]” or, put differently, “[w]hat … is the proper relationship between immigration law and policy … and alienage law and policy”); id. at 38–39 (describing difference between immigration and alienage law as “jurisdictional dispute in the law”).
76. That is to say, the Court officially sanctioned state immigration regulation on the basis of this distinction. Constitutional or not, states actively regulated immigrants in the plenary power era. See Hines, 312 U.S. at 79 (Stone, J., dissenting) (reminding Justices in majority that nineteen states required “some form of registration for aliens” at time Congress passed Alien Registration Act); see also Tashiro v. Jordan, 278 U.S. 123, 125–26 (1928) (finding no “conflict between the exercise of the treaty-making power of the federal government and the reserved powers of [California]” to enact Alien Land Law); Minneapolis v. Reum, 56 F. 576, 580 (8th Cir. 1893) (preserving state’s right to “confer on foreign citizens or subjects” rights and privileges other than naturalization); Motomura, Outside the Law, supra note 42, at 68–69 (stating states maintained “significant role in naturalization” until 1906).
77. U.S. 351, 355 (1976). Citing Hines’s preemption analysis, Justice Brennan emphasized, “the existence vel non of federal regulation is wholly irrelevant if the Constitution of its own force requires preemption of such state regulation.” Id. (citing Hines, 312 U.S. at 52).
78. Id. at 355 (emphasis added).
79. U.S. 202 (1982).
80. Id. at 228 n.23.
81. These calculations are based on data reported by Kris Kobach. See Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration [hereinafter Kobach, Rule of Law], in Strange Neighbors: The Role of States in Immigration Policy 99 (Carissa Byrne Hessick & Gabriel J. Chin eds., 2014).
82. Immigration Enactments Database, Nat’l Conference of State Legislatures, http://www.ncsl.org/research/immigration/immigration-laws-database.aspx (on file with the Columbia Law Review) (last visited Sept. 19, 2015) (selecting year from pull-down menu, conducting search for years 2008–2014, and totaling results).
83. Id. (on file with the Columbia Law Review) (last visited Oct. 28, 2015) (conducting search for 2014).
84. Report on State Immigration Laws (January–June), Nat’l Conference of State Legislatures 1 (July 31, 2015), http://www.ncsl.org/documents/immig/ImmigrationReport_July2015.pdf [http://perma.cc/5TJC-2A7Y] [hereinafter Immigrant Policy Project (July 2015)].
85. See infra section II.A.2 (discussing Arizona v. United States, 132 S. Ct. 2492 (2012)).
86. See Lozano v. City of Hazleton, 724 F.3d 297, 300–01 (3d Cir. 2013) (describing Hazleton, Pennsylvania’s Illegal Immigration Relief Act Ordinance and Rental Registration Ordinance, which restricted unauthorized aliens’ ability to obtain employment and rental housing).
87. See, e.g., Kobach, Rule of Law, supra note 82, at 113–15 (recommending state statutes mirror federal immigration laws as means of avoiding preemption).
88. The Supreme Court’s anticommandeering principle, for example, seems to limit challenges to sanctuary laws, which announce a state or locality’s refusal to facilitate or participate in the enforcement of federal immigration law. See Printz v. United States, 521 U.S. 898, 933 (1997) (“The Federal Government may not compel the States to enact or administer a federal regulatory program.” (internal quotation marks omitted) (quoting New York v. United States, 505 U.S. 144, 188 (1992))); accord City of New York v. United States, 179 F.3d 29, 33, 35 (2d Cir. 1999) (suggesting federal government could not compel states to cooperate with federal immigration enforcement but striking down New York law prohibiting voluntary cooperation by state officials); Rodríguez, supra note 61, at 628 (noting under Printz, Congress “cannot compel state governments to assist in enforcing federal law” and would therefore “be hard pressed to make the claim that the mere existence of the noncooperation laws conflicts with the general purpose of regulating and enforcing immigration laws”). For a description of various sanctuary laws and their purpose, see McKanders, supra note 22, at 586–87.
89. De Canas v. Bica, 424 U.S. 351, 355–56 (1976) (“[E]ven if [a] local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration … .”).
90. Huyen Pham & Pham Hoang Van, Measuring the Climate for Immigrants: A State-By-State Analysis, in Hessick & Chin, supra note 82, at 21, 30 (tallying pro-immigrant statutes). Illinois and California demonstrated the greatest commitment by far to immigrants’ rights during this time period. See id. at 32 (assigning California and Illinois highest Immigrant Climate Index scores). Connecticut, Indiana, Iowa, Maryland, Massachusetts, Minnesota, New Mexico, New York, Ohio, Pennsylvania, Washington, and Wisconsin also ranked as immigrant-friendly states, though they lagged substantially behind in the number of pro-immigrant statutes. See id. (ranking states based on enactment of immigrantfriendly statutes relative to enactment of anti-immigrant ones).
91. Nat’l Conference of State Legislatures, Report on 2014 State Immigration Laws 2 (Jan. 6, 2015), http://www.ncsl.org/documents/immig/ImmigrationReport2014Final.pdf [http://perma.cc/XN3F-B7E5] [hereinafter, Immigrant Policy Project (Jan. 2015)].
92. Inclusive Policies Advance Dramatically in the States: Immigrants’ Access to Driver’s Licenses, Higher Education, Workers’ Rights, and Community Policing, Nat’l Immigration Law Ctr. 1, 15, http://www.nilc.org/pubs.html#statesessions (on file with the Columbia Law Review) (last updated Oct. 2013). This study only includes data from January–October 2013.
93. See Immigrant Policy Project (Jan. 2015), supra note 92, at 2 (reporting “as of Nov[ember] 30, 2014, lawmakers in 43 states and the District of Columbia enacted 171 laws and 117 resolutions related to immigration,” many of which were pro-immigrant); Elias, supra note 19, at 705–06 (2013) (arguing “post-Arizona legal landscape … will be grounded in immigrant-inclusionary rulemaking”); Kirk Semple, De Blasio to Host Mayors at Immigration Forum, N.Y. Times (Dec. 6, 2014), http://www.nytimes.com/2014/12/07/nyregion/de-blasio-to-host-mayors-at-immigration-forum.html?hp&action=click&pgtype=Homepage&module=second-column-region®ion=top-news&WT.nav=top-news (on file with the Columbia Law Review) (describing efforts of twenty democratic mayors to implement President Obama’s executive policies and galvanize progressive immigration reform); Matthew Kolodziej, Local Anti-Immigrant Laws Die as More States and Municipalities Pursue Pro-Immigrant Policies, Immigration Impact (Mar. 5, 2014), http://immigrationimpact.com/2014/03/05/local-anti-immigrant-laws-die-as-more-states-and-municipalities-pursue-pro-immigrant-policies/ [http://perma.cc/FHV5-ZS3D] (“Local anti-immigrant laws have failed both as policy and as political strategy, and increasingly local governments are rejecting them in favor of pursuing pro-immigrant policies instead.”).
94. Immigrant Policy Project (July 2015), supra note 85, at 1.
95. See id. at 5 (describing Texas’s HB 1 bill, H.B. 1, 84th Leg., Reg. Sess. (Tex. 2015)).
96. See id. (describing Connecticut’s HB 6844 bill, H.B. 6844, 2015 Gen. Assemb., Reg. Sess. (Conn. 2015)).
97. See id. at 6 (describing Washington’s HB 1127 bill, H.B. 1127, 64th Leg., Reg. Sess. (Wash. 2015)).
98. See id. at 1 (“Delaware and Hawaii enacted legislation to give unauthorized immigrants driving privileges.”). As of July 2015, twelve states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont, Washington), the District of Columbia, and Puerto Rico allow immigrants to obtain driver’s licenses. See Driver’s Licenses Map, Nat’l Immigration Law Ctr., http://www.nilc.org/driverlicensemap.html [http://perma.cc/K8NU-R8SJ] (last updated July 1, 2015).
99. Immigrant Policy Project (July 2015), supra note 85, at 1.
100. See id. at 2 (referencing task forces created).
101. See supra notes 91–101 and accompanying text (providing empirical evidence of subfederal immigration legislation enacted since 2005); see also Immigrant Policy Project (July 2015), supra note 85, at 2, 11–12 (discussing state resolutions seeking action from Congress).
102. Take, for example, Cities United for Immigration Action, a national Democratic mayoral steering committee that has pledged to “defend” and “support” the President’s actions. Semple, supra note 94 (internal quotation marks omitted). Members of Cities United promise “to put the executive action President Obama announced … into effect on the local level, push for congressional action on immigration reform, and rally grassroots support.” Katie Zezima, Mayors Form Coalition to Support Obama’s Immigration Action, Wash. Post (Dec. 1, 2014), http://www.washingtonpost.com/blogs/post-politics/wp/2014/12/01/mayors-begin-coalition-to-support-obamas-immigration-action [http://perma.cc/C6DY-NS9y]; see also Semple, supra note 94 (“‘This is the biggest news for America’s cities in a long time and I think it’s America’s mayors that will lead on this issue.’” (quoting interview with Mayor Eric Garcetti of Los Angeles)); Email from Mayors’ Steering Committee, Cities United for Immigration Action, to author (Jan. 10, 2015, 5:07 PM) (on file with the Columbia Law Review) (“We believe the president’s action will help our cities prosper and be more inclusive, maximizing the contributions of immigrants to our local economies encouraging their participation in civic activities and broadening access to city resources.”). “What we’re trying to do is amplify a historical moment,” New York Mayor Bill de Blasio explained, “I think we’re in a very fluid dynamic.” Semple, supra note 94 (internal quotation marks omitted). Cities United represents a broader integrationist movement in favor of expanded state immigration power, proving restrictionist states are not the only ones capable of capitalizing on the Constitution’s ambiguous allocation of immigration authority. Cf. Weber, supra note 107, at 734 (“If controversial measures such as the revocation of a business license, mandatory implementation of E-Verify and potentially even occupancy licenses are allowed, why not also allow (or encourage) subfederal driver’s license laws, locally-issued work permits, Mini-Dream Act laws, or sanctuary laws?” (footnote omitted)). The mayoral coalition does not identify its mission as constitutional reinterpretation; its stated goal is to realize local prerogatives and “jump-start the campaign to overhaul immigration legislation” at the federal level. Semple, supra note 94. But rhetoric and political intention operate in a sphere apart from constitutional reality. Cf. Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485, 1491 (1994) (“[T]he forces propelling [institutional] change [are] often fortuitous and just as often prompted by events having nothing to do with federalism.”). The coalition is using a decidedly localist strategy to redefine federal policy from the ground up. This necessarily informs debates about the proper vertical allocation of the constitutional power to regulate noncitizens. Cf. Amanda Peterson Beadle, Pro-Immigrant Measures Make Gains at the State Level, Immigration Impact (Mar. 29, 2013), http://immigrationimpact.com/2013/03/29/pro-immigrant-measures-make-gains-at-the-state-level/ [http://perma.cc/3QDX-XGWX] (“[S]tate efforts to improve immigration policy are complementary to national efforts to craft a comprehensive immigration plan.”).
103. See John Celock, Kris Kobach Plans State Based Push Against Obama Immigration Plan, Celock Report (Dec. 19, 2014), http://johncelock.com/kris-kobach-immigration [http://perma.cc/A36S-MGXF] (reporting Kobach’s statement that “bill pushes back very hard against the Obama Administration,” conveying state’s “position that federal law is not consistent with Obama”); Alan Greenblatt, Kris Kobach Tackles Illegal Immigration, Governing (Mar. 2012), http://www.governing.com/topics/politics/gov-kris-kobach-tackles-illegal-immigration.html [http://perma.cc/67AV-BEKG] (reporting “Kobach’s success in drafting and defending laws meant to curb illegal immigration—not just in Arizona, but also in Alabama and other states and localities from Pennsylvania to Texas”).
104. Press Release, Office of the Mayor of N.Y., Mayor Bill de Blasio Hosts Immigration Summit for Cities Across Country (Dec. 8, 2014), http://www1.nyc.gov/office-of-the-mayor/news/547-14/mayor-bill-de-blasio-hosts-immigration-summit-cities-across-country#/0 [http://perma.cc/3LSL-CUGV]; see also id. (documenting statement of Hartford Mayor Pedro Segarra, who credited President Obama with “defin[ing] a path forward on immigration” and pledged to “take the baton and work within our communities to ensure we make [integrationism] successful”).
105. Keith Cunningham-Parmeter, Forced Federalism: States as Laboratories of Immigration Reform, 62 Hastings L.J. 1673, 1674 (2011).
106. Id. at 1675; cf. Elias, supra note 19, at 705 (“Arizona v. United States may mark a watershed in U.S. immigration law and policy, but it does not mark the end of state and local engagement in immigration regulation.”); Huntington, supra note 22, at 790 (calling immigration federalism “central political issue of our time” that “has led to numerous confrontations between the political branches of governments”); Stumpf, supra note 25, at 1564 (noting trend “toward acceptance in the public and judicial minds of a subnational role in the regulation of noncitizens”); David P. Weber, State and Local Regulation of Immigration: The Need for a Bilateral (Reciprocal) Ratchet, 18 ILSA J. Int’l & Comp. L. 707, 714 (2012) (stating “another shift in immigration-related preemption is already underway” and that “most interesting aspect of the current shift is the potential extent to which states’ roles in immigration may be enlarged”).
107. S. Ct. 1968 (2011).
108. S. Ct. 2492 (2012).
109. See 8 U.S.C. § 1324a(a)(1)(A) (2012) (making it unlawful for “person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien”).
110. See Ariz. Rev. Stat. Ann. § 23-212 (2012) (stating “employer[s] shall not knowingly employ an unauthorized alien” and describing potential ramifications).
111. See Whiting, 131 S. Ct. at 1981, 1985 (upholding LAWA and finding it did not conflict with federal scheme).
112. Id. at 1979 (quoting id. at 1990 (Breyer, J., dissenting)).
113. Id. at 1979–80; cf. id. at 1975 (critiquing IRCA for “restrict[ing] the ability of States to combat employment of unauthorized workers”).
114. Id. at 1974 (alteration in Whiting) (quoting De Canas v. Bica, 424 U.S. 351, 356 (1976)); see also Michael Rubinkam, Supreme Court: Hazleton, Pennsylvania Immigration Law Must Be Re-Examined, Huffington Post (June 6, 2011), http://www.huffingtonpost.com/2011/06/06/hazleton-pennsylvania-immigration_n_871791.html [http://perma.cc/GA3S-VAW6] (quoting Temple University Law School Professor Peter Spiro, who said “the clear message is they [the Justices] are going to tolerate some level of state and local participation in immigration enforcement”).
115. See Whiting, 131 S. Ct. at 1992–97 (Breyer, J., dissenting, joined by Ginsburg, J.) (emphasizing IRCA’s express preemption clause and contrasting clause with preemptive language in prior congressional immigration statutes); see also id. at 1994 (Breyer, J., dissenting, joined by Ginsburg, J.) (noting before IRCA “States as well as the federal government could license agricultural labor contractors” (emphasis added)). The dissent did, however, voice concerns. Breyer, with whom Justice Ginsburg joined in dissent, began by attacking the majority’s statutory interpretation as well as LAWA’s potentially discriminatory effect. See id. at 1987–92 (Breyer, J., dissenting, joined by Ginsburg, J.) (criticizing majority’s interpretation of “license” and emphasizing LAWA contains no “protection against unlawful discrimination”).
116. Id. at 2000 (Sotomayor, J., dissenting) (emphasis added).
117. See id. at 1981 (majority opinion) (finding implied preemption analysis unnecessary because “[IRCA] specifically preserved … authority for the States”). It is worth noting that the Chamber of Commerce did not portray the federal government’s power to regulate alien employment as inherently exclusive. Rather, it claimed that in enacting IRCA, Congress “‘intended the federal system to be exclusive.’” Whiting, 131 S. Ct. at 1981 (emphasis added) (quoting Brief for the Petitioners at 39, Whiting, 131 S. Ct. 1968 (No. 09-115), 2010 WL 3483324). In other words, the Chamber implied preemption was proper because Congress declared its exclusivity—in a field that otherwise would not necessarily e exclusively reserved for Congress.
118. See Whiting, 131 S. Ct. at 1985 (Kennedy, J., concurring in part and concurring in the judgment) (“Implied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preempts state law.’” (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992))). See generally Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727 (2008) (investigating “how much weight courts should give to the views of other institutions in resolving preemption controversies”).
119. Whiting, 131 S. Ct. at 1984.
120. Id. at 1981.
121. S. Ct. 2958 (2011).
122. S. Ct. 1491 (2014).
123. F.3d 1053 (9th Cir. 2014), reh’g denied, 135 S. Ct. 889 (2014). Interestingly, Justices Scalia, Thomas, and Alito would have granted the stay, likely in order to protect states’ right to pass laws regulating immigrants. See 135 S. Ct. 889, 889 (2014). The D.C. Circuit has rebuffed questions of constitutionality in the separation-of-powers context as well. Recently, Judge Beryl A. Howell dismissed a claim alleging DACA involved an unconstitutional use of executive power. See Arpaio v. Obama, 27 F. Supp. 3d 185, 191 (D.D.C. 2014) (“‘[O]ur Constitution places such sensitive immigration and economic judgments squarely in the hands of the Political Branches, not the courts.’” (quoting Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1151 n.10 (D.C. Cir. 2014))).
124. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012).
125. Id. (citations omitted) (quoting U.S. Const., art. I, § 8, cl. 4) (citing Toll v. Moreno, 458 U.S. 1, 10 (1982)).
126. Id. at 2500 (citing Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)); see also id. At 2503 (“States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring)); De Canas v. Bica, 424 U.S. 351, 356 (1976))); Rodríguez, supra note 61, at 620 (“Courts often begin their [immigration federalism] analysis with strong statements of exclusivity but then strike down state laws on a conflict-preemption basis.”.
127. Arizona, 132 S. Ct. at 2505 (emphasis added).
128. See id. at 2501 (stating federal statute at issue in Hines “struck a careful balance” between state and federal law (citing Hines v. Davidowitz, 312 U.S. 52, 61 (1941))).
129. Id. at 2519 (Scalia, J., concurring in part and dissenting in part).
130. Id. at 2514 (Scalia, J., concurring in part and dissenting in part); see also id. At 2511 (Scalia, J., concurring in part and dissenting in part) (“As a sovereign, Arizona has the inherent power to exclude persons from its territory … . That power to exclude has long been recognized as inherent in sovereignty.”); Cunningham-Parmeter, supra note 106, at 1682–84 (discussing characterization of states as “immigration sovereigns”).
131. See Arizona, 132 S. Ct. at 2523 (Thomas, J., concurring in part and dissenting in part) (“I reach the conclusion … that there is no conflict between the ‘ordinary meanin[g]’ of the relevant federal laws and that of [SB 1070].” (alteration in original) (quoting Wyeth v. Levine, 555 U.S. 555, 588 (2009))).
132. Id. at 2524 (Thomas, J., concurring in part and dissenting in part).
133. See id. at 2525 (Alito, J., concurring in part and dissenting in part) (reasoning “state police powers are implicated here” and Congress failed to speak “with the requisite clarity to justify invalidation of” otherwise permissible state law).
134. Id. (Alito, J., concurring in part and dissenting in part) (citing De Canas v. Bica, 424 U.S. 351, 351 (1976)).
135. See, e.g., Hu, supra note 74, at 570–74 (discussing development and lack of clarity in Court’s preemption doctrine).
136. See supra section II.A (discussing Whiting and Arizona).
137. As Clare Huntington has explained, “To the extent that the federal government does not exercise its authority—that is, it does not statutorily preempt states and local laws—subnational governments are free to exercise their authority to regulate immigration.” Huntington, supra note 22, at 825.
138. See supra notes 22–23 and accompanying text (explaining lack of textual evidence in Constitution regarding proper allocation of immigration authority).
139. See supra section II.A (analyzing federalist rhetoric in Whiting and Arizona).
140. The shift may be temporary, enduring just long enough for the election of a sympathetic, integrationist Congress or President. Or, it may persist over the long-term, displacing Congress in affairs not obviously related to “pure” immigration law—the admission, exclusion, and removal of aliens. The former approach is less radical, but also less effective in that it fails to reshape the boundaries of federal supremacy; integrationist state laws would face the specter of preemption with each new Congress. In contrast, the latter option narrows the definition of immigration law while expanding the definitional boundary of alienage law—the rights and obligations of noncitizens at the state and local level. It thereby reduces the overlap between federal and state authority and limits the scope of congressional preemption indefinitely, accomplishing a significant decentralization of immigration authority.
141. See Cunningham-Parmeter, supra note 106, at 1710–11 (“State enforcement models may generate externalities, but those externalities might pale in comparison to current costs.”).
142. See, e.g., George J. Borjas, Heaven’s Door: Immigration Policy and the American Economy 118 (1999) (“[T]he main immigrant-receiving states will soon be leading the ‘race to the bottom,’ as they attempt to minimize the fiscal burden imposed by the purposive clustering of immigrants in those states that provide the highest benefits.”); see also Wishnie, supra note 60, at 554 (citing Borjas, supra, at 118) (“One should … be concerned about the possibility of a race-to-the-bottom among states.”). This notion has been somewhat debunked. See Peter H. Schuck, Some Federal-State Developments in Immigration Law, 58 N.Y.U. Ann. Surv. Am. L. 387, 389 (2002) (noting, despite predictions of “race to the bottom,” none occurred with respect to aliens’ welfare benefits after welfare reform law of 1996).
143. See Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1990–93 (2011) (Breyer, J., dissenting) (criticizing Arizona’s SB 1070 because it would lead “to ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination”); Bosniak, Immigrants, Preemption, and Equality, supra note 22, at 183 (arguing preemption doctrine “must be regarded, at least functionally, as a asymcrucial part of [the] structure of protections available to aliens against state power”); Pratheepan Gulasekaram & S. Karthick Ramakrishnan, Immigration Federalism: A Reappraisal, 88 N.Y.U. L. Rev. 2074, 2133 (2013) [hereinafter Gulasekaram & Ramakrishnan, Immigration Federalism] (“Despite judicial avoidance of equal protection in its evaluation of state enforcement schemes, the salience of ethnic nationalism in the genesis of the new immigration federalism begs a greater role for equality-based jurisprudential norms.”); Rick Su, Notes on the Multiple Facets of Immigration Federalism, 15 Tulsa J. Comp. & Int’l L. 179, 184 (2008) (“[M]any of the immigration precedents at the heart of the most recent controversy over sub-federal regulations of immigration are better understood through the ongoing effort to define the substantive and procedural protections that our structure of federalism guarantees.”); Wishnie, supra note 60, at 553 (making different but comparable constitutional argument that permitting devolution of Congress’s immigration power “endorses the creation of state and local laboratories of bigotry against immigrants”); Bill Ong Hing, Like It or Not, Arizona’s SB 1070 Is About Racial Profiling, Huffington Post (Apr. 27, 2012) http://www.huffingtonpost.com/bill-ong-hing/arizona-immigration-law_b_1457435.html [http://perma.cc/23SQ-DXEE] (“SB 1070 is in fact all about racial profiling given the institutionalized racism under which the law and its copycat statutes across the country have emerged.”).
144. Rodríguez, supra note 61, at 582; cf. Huntington, supra note 22, at 824 n.155 (“[P]reemption removes issues within its scope from the policy agenda of state and local governments, requiring that citizen participation and deliberation with respect to those issues take place at the national level.” (quoting Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 Tex. L. Rev. 1, 130–31 (2004))).
145. See, e.g., Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1057–58 (9th Cir. 2014) (finding plaintiffs “demonstrated a likelihood of success on the merits of their equal protection claim” challenging Arizona policy “prevent[ing] DACA recipients from obtaining Arizona driver’s licenses”).
146. See Huntington, supra note 22, at 831 (“[T]here is no structural reason to believe that one level of government will be more or less welcoming to non-citizens and therefore, on this basis, to favor uniformity over experimentalism.”).
147. See, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 595, 609 (1888) (upholding treaty enacted upon belief that migration of Chinese laborers “was in numbers approaching the character of an Oriental invasion, and was a menace to [American] civ ilization”); Matter of D-J-, 23 I. & N. Dec. 572, 583 (U.S. Att’y Gen. 2003) (permitting government to introduce generalizations about noncitizens as rationale for denying bond in individualized asylum hearings); R.I.L–R v. Johnson, 80 F. Supp. 3d 164, 180–85 (D.D.C. 2015) (enjoining deterrence as justification for blanket detention of noncitizens in light of noncitizens’ due process rights); Cristina Constantini, Anastasio Hernandez Rojas Death: 16 Members of Congress Call for Justice, Huffington Post (May 10, 2012), http://www.huffingtonpost.com/2012/05/11/anastasio-hernandez-rojas_n_1507274.html [http://perma.cc/5323-RSYK] (describing congressional response to death of “undocumented immigrant who [was] tased and beaten by U.S. Border Patrol Agents”).
148. See Mathews v. Diaz, 426 U.S. 67, 82 (1976) (applying rational basis test to federal alienage classification); see also Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 788 (9th Cir. 2014) (distinguishing Demore v. Kim, 538 U.S. 510 (2003), which upheld categorical denial of bail for unauthorized immigrants, in striking down Arizona statute prescribing the same, explaining Demore “applied rational basis review, not heightened scrutiny, because it involved federal regulation of immigration”); Rodríguez, supra note 61, at 628 (“The notion that federal alienage classifications are inherently rational, whereas state classifications might not be, is hard to explain without the backdrop of federal exclusivity … .”); Wishnie, supra note 60, at 496 (reasoning “at the federal level, equal protection norms must be balanced against the deference traditionally accorded to exercises of the federal immigration power”).
149. U.S. 365, 372 (1971) (emphasis added).
150. See, e.g., Petition for Writ of Certiorari, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11-182), 2011 WL 3562633, at *i (phrasing question presented as “whether the federal immigration laws preclude Arizona’s efforts at cooperative enforcement and impliedly preempt [] four provisions of S.B. 1070 on their face”).
151. See, e.g., Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1970–87 (2011) (declining to respond to Justice Breyer’s equal protection objection to LAWA); Jean v. Nelson, 472 U.S. 846, 857 (1985) (concluding discrimination against Haitians unconstitutional because federal immigration law does not “authorize discrimination on the basis of race and national origin,” and not because violative of equal protection doctrine); see also Karen Nelson Moore, Aliens and the Constitution, 88 N.Y.U. L. Rev. 801, 820–21 (2013) (stating “debate over what distinctions concerning the legality of an alien’s presence may be permissibly drawn” often takes form of legal “challenges [that] rely on federal preemption arguments rather than equal protection ones”).
152. See Moore, supra note 152, at 815 n.59 (noting “robust preemption jurisprudence in the state-alienage legislation arena … often provides grounds for striking down state statutes without reaching the constitutional equal protection issues” (citing Toll v. Moreno, 458 U.S. 1 (1982))).
153. See Graham, 403 U.S. at 372 (declaring classifications based on alienage inherently suspect and therefore subject to strict scrutiny).
154. Subfederal immigration regulations might even stimulate equal protection challenges. As the Court’s jurisprudence currently stands, litigants must be able to show a pattern of discrimination or intent to discriminate in order to prevail on an equal protection claim. See generally Washington v. Davis, 426 U.S. 229, 238–43 (1976) (requiring petitioners demonstrate purposeful, invidious discrimination in order to succeed on equal protection claim). Restrictionist state laws often include clear statements of animus. See, e.g., Rebecca Leber, Republicans Admit Racism Is Big Obstacle to Passing Immigration Reform, Think Progress (Jan. 30, 2014), http://thinkprogress.org/immigration/2014/01/30/3226951/immigration-gop-racism [http://perma.cc/SW44-ZANT] (reporting racist comments made at town meetings and by politicians); see also Gulasekaram & Ramakrishnan, Immigration Federalism, supra note 144, at 2135 (advocating “strong judicial role in monitoring and deterring the use of unlawful and illegitimate characteristic in the genesis of subfederal immigration law”).
155. Critics claim the Supreme Court’s equal protection doctrine will lose its potency if power to regulate immigrants is delegated or devolved to the states. See, e.g., Wishnie, supra note 60, at 553 (arguing against devolution of federal immigration power and stating “devolution would erode the antidiscrimination and anticaste principles that are at the heart of our Constitution and that long have protected noncitizens at the subfederal level”). This concern arises from the Supreme Court’s holding in Mathews v. Diaz that federal alienage classifications require only rational basis review. See supra note 149–150 and accompanying text (discussing asymmetrical application of equal protection standard depending on whether alienage classification drawn by state or federal government). According to Wishnie, the less stringent rational basis standard would devolve along with the power to regulate noncitizens. See Wish ie, supra note 60, at 553–54 (noting risk of decreased immigrant access to social benefits). This Note does not argue that federal immigration power should be devolved or delegated to states. Rather, it argues that states have the political power to compel a structural shift in immigration power, one that is not prohibited by the Constitution and that has the ability to shape the content of policy measures.
156. See Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 Iowa L. Rev. 707, 734–36 (1996) (describing origins of public interest doctrine and explaining, “[w]here the discrimination pertained to the regulation or distribution of the public domain, or of the common property or resources of the people of [a] State,” such property or resources could be “limited to [the state’s] citizens” (internal quotation marks omitted) (quoting Cabell v. Chavez-Salido, 454 U.S. 432, 437 (1982))).
157. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 421 (1948); see also Scaperlanda, supra note 157, at 735–36 (explaining Takahashi “signaled the decline of [the public interest doctrine]”).
158. The public function exception allows states, subject only to rational basis review, to “exclude aliens from positions intimately related to the process of democratic self-government.” Bernal v. Fainter, 467 U.S. 216, 220 (1984); see also Cabell, 454 U.S. at 439 (“The exclusion of aliens from basic governmental processes is … a necessary consequence of the community’s process of political self-definition.”); Foley v. Connelie, 435 U.S. 291, 295–96 (1978) (“[W]e have recognized ‘a State’s historical power to exclude aliens from participation in its democratic political institutions,’ as part of the sovereign’s obligation ‘to preserve the basic conception of a political community.’” (citations omitted)); id. at 295 (“It would be inappropriate … to require every statutory exclusion of aliens to [satisfy] ‘strict scrutiny,’ because to do so would ‘obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.’” (quoting Nyquist v. Mauclet, 432 U.S. 1, 14 (1977) (Burger, C.J., dissenting))); cf. Ambach v. Norwick, 441 U.S. 68, 73–74 (1978) (applying rational basis review to alienage-based discrimination under state laws governing “state functions … so bound up with the operation of the State as a governmental entity as to permit exclusion from those functions of all persons who have not become part of the process of self-government”).
159. See Scaperlanda, supra note 157, at 736–37 (“[T]he public function doctrine finds its moorings in an exclusionary theory of the political community. The Court will not employ strict scrutiny … where the state … is merely engaging in the ongoing process of ‘defin[ing] its political community.’” (quoting Sugarman v. Dougall, 413 U.S. 634, 642–43 (1973))).
160. See Ambach, 441 U.S. at 79–80 (holding citizenship requirement for public school teachers satisfied rational basis review because teachers “influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities”).
161. See Cabell, 454 U.S. at 444 (concluding state’s ability to “limit the exercise of … coercive police powers over the members of the community to citizens” rendered California law proscribing noncitizen probation officers “sufficiently tailored” to pass “lower level of scrutiny”).
162. Foley, 435 U.S. at 299–300 (“It is not surprising … that most States expressly confine the employment of police officers to citizens, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions.” (footnotes omitted)).
163. Sugarman, 413 U.S. at 647–48 (condoning citizenship requirement for state office where requirement is rationally related to legitimate state interest).
164. See Bernal v. Fainter, 467 U.S. 216, 222–27 (1984) (finding Texas citizenship requirement for notary publics did not fall within political function exception and “statute is therefore subject to strict judicial scrutiny”); Plyler v. Doe, 457 U.S. 202, 216 (1982) (stating “[state] legislature must have substantial latitude to establish classifications” that bear “some fair relationship to a legitimate public purpose” but emphasizing “we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification”); Nyquist v. Mauclet, 432 U.S. 1, 5–6, 11 (1977) (stating in recognizing states’ interest in regulating their political communities, “Court had in mind a State’s historical and constitutional powers to define the qualifications of voters” and certain subsets of state officials, not their ability to limit in-state tuition to citizens); Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 604 (1976) (acknowledging, “in Truax the Court drew a distinction between discrimination against aliens” where “the State has a special interest in affording protection to its own citizens” but stating “[t]hat distinction … is no longer so sharp as it then was” (citing Truax v. Raich, 239 U.S. 33, 39–40 (1915))); In re Griffiths, 413 U.S. 717, 722–23, 725 (1973) (finding it “undisputed that a State has a constitutionally permissible and substantial interest in determining whether an applicant [to the bar] possesses the character and general fitness requisite for an attorney” yet finding exclusion of aliens not “necessary to the promoting or safeguarding of this interest” (internal quotation marks omitted) (quoting Law Students Research Council v. Wadmond, 401 U.S. 154, 159 (1971))); Sugarman, 413 U.S. at 642–43, 647 (recognizing “State’s interest in establishing its own form of government, and in limiting participation in that government” but finding law excluding aliens from civil-service positions “neither narrowly confined nor precise” enough to “withstand scrutiny under the Fourteenth Amendment”).
165. See supra note 165 (collecting cases in which Court acknowledged states’ traditional authority to discriminate in certain circumstances while finding such circumstances lacking with regard to challenged alienage classifications). This is likely due to the increased value the Supreme Court seems to have placed on personhood in immigration litigation in recent years. Compare Harisiades v. Shaughnessy, 342 U.S. 580, 597 (1952) (Frankfurter, J., concurring) (“[W]hether immigration laws have been crude and cruel, whether they may have reflected xenophobia in general[,] … the underlying policies of what classes of aliens … shall be allowed to stay, are for Congress exclusively to determine even though such determination may … offend American traditions … .” (citations omitted)), with Zadvydas v. Davis, 533 U.S. 678, 695–96 (2001) (distinguishing constitutionality of Congress’s plenary power to admit or expel noncitizens and that of congressional procedures used to do so while emphasizing noncitizen petitioners’ countervailing “liberty interest”), and Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1109 (1994) [hereinafter Bosniak, Difference that Alienage Makes] (“Graham is fundamentally an equality case: It emphasizes aliens’ personhood … and (implicitly) their functional identity with citizens in virtually all areas of state life. On this basis Graham imposes a substantial burden of justification on states that choose to discriminate against them.”). Indeed, personhood was a key reason behind the decline of the plenary power doctrine, outweighing, in the Court’s eyes, federal sovereign prerogatives such as the foreign relations power. See Bosniak, Difference that Alienage Makes, supra, at 1115–16 (“[T]he Court has carved out for all aliens a zone of protected personhood, where the nation’s membership interests are of no consequence at all.”).
166. It is also worth noting that under the equal protection doctrine the level of scrutiny applied to classifications based on legal status remains ambiguous. See Moore, supra 152, at 814 & n.59 (arguing it is unclear whether Supreme Court “has explicitly adopted” application of strict scrutiny to state classifications but rational basis review to federal ones “as a part of its constitutional jurisprudence”); see also id. at 813–15 (questioning relationship between plenary power and degree of scrutiny applied in equal protection cases). The Supreme Court seems to have indicated that the degree of constitutional scrutiny depends on the legal status of the immigrant in question. Whereas alienage classifications (i.e., classifications premised on the distinction between citizenship and authorized immigrant status) have generally required strict scrutiny, see supra notes 157–167 and accompanying text (examining application of strict scrutiny versus rational basis review to state laws discriminating on basis of alienage), classifications based on unauthorized immigrant status apparently merit intermediate scrutiny, and arguably less if not accompanied by some constitutionally cognizable special circumstance. See Plyler, 457 U.S. at 219–25, 226, 230 (holding law prohibiting unauthorized children from public schools must “further[] some substantial goal of the State” and be “reasonably adapted to” that goal and, in finding law did neither, emphasizing immutability of unauthorized status, culpability, age, and importance of education); see also Motomura, Outside the Law, supra note 42, at 8–9 (arguing “[b]y asking for a substantial goal, the Court signaled that its analysis might be closer to … ‘intermediate scrutiny’” and remarking “Plyler remains a high-water mark for the constitutional protection of unauthorized migrants”).
167. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 267, 273 (1972) (holding search of noncitizen petitioner’s vehicle violated Fourth Amendment); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (“[A]ll persons within the territory of the United States are entitled to the protection guaranteed by [the Fifth and Sixth Amendments].”).
168. This would require courts to engage in line-drawing exercises, determining whether a state law exhibits a sufficient nexus to pure immigration law to be considered a regulation thereof. Rodríguez, supra note 61, at 629–30 (arguing acceptance of state im migration regulation would require exploration of what types of regulations fall within states’ powers). Some courts are already grappling with these line-drawing difficulties, suggesting courts are capable of conducting such assessments. See, e.g., Keller v. City of Fremont, 719 F.3d 931, 941 (8th Cir. 2013) (“Laws designed to deter, or even prohibit, unlawfully present aliens from residing within a particular locality are not tantamount to immigration laws establishing who may enter or remain in the country.” (emphasis omitted)). 170. William H. Frey, Immigration and Demographic Balkanization, in America’s Demographic Tapestry: Baseline for New Millennium 78, 79 (James W. Hughes & Joseph J. Seneca eds., 1999).
169. See Rodríguez, supra note 61, at 590, 596 (arguing with respect to immigration reform “interests in play are too diverse to produce even a minimally acceptable consensus policy” and “accepting the costs of some … local ordinances may be necessary to negotiate effectively the deep ideological divisions on this issue”).
170. See id. at 639 (stating “[w]hatever is motivating [restrictionist policies] … is likely to give way over time to acceptance” but transition “is more likely to occur … if localities that adopt these ordinances come to feel the consequences of excluding immigrants from their communities”).
171. See Cunningham-Parmeter, supra note 106, at 1711 (detailing consequences of law, which included “substantial legal bills,” deferred “road maintenance and construction projects,” store closures, and “businesses suffering weekly losses estimated at $50,000” over course of approximately one year).
172. Id. at 1712.
173. See S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance of the Political in Immigration Federalism, 44 Ariz. St. L.J. 1431, 1450–74 (2012) (concluding restrictionist sentiment depends on “combination of demographic ‘facts’” that simply “[do] not stand up to empirical scrutiny”).
174. Cf. Weber, supra note 107, at 738–39 (“Providing states and localities a voice and a role, both pro-enforcement and pro-immigrant, in shaping the current legislation may be the best way for the [immigration] debate to evolve when faced with the very real possibility that no federal, comprehensive efforts will be forthcoming in the near future.”). 177. See Rodríguez, supra note 61, at 591 (“We cannot escape the need for a mechanism that enables people to express their diverse positions on unauthorized migration.”).
175. See generally, e.g., Erin Ryan, Negotiating Federalism, 52 B.C. L. Rev. 1, 11 (2011) [hereinafter Ryan, Negotiating Federalism] (“Notwithstanding the stylized narrative of federalism in rhetoric, the boundary between state and federal authority in practice is the subject of ongoing intergovernmental negotiation.”); Erin Ryan, Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally, 115 Colum. L. Rev. Sidebar 4, 13–20, 24–32, 35–37 (2015), http://columbialawreview.org/wp-content/uploads/2015/04/Ryan-v5.pdf (on file with the Columbia Law Review) [hereinafter Ryan, Structural Constitution] (reviewing vertical-federalism-bargaining scholarship and stating “[b]alanced [f]ederalism recognizes the primary role of vertical bargaining to allocate contested authority in the conduct of federalism-sensitive governance”).
176. See Aziz Z. Huq, The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595, 1597 (2014) (“Questions invariably persist about the exact boundaries of institutional entitlements [granted by the Constitution].”); Ryan, Structural Constitution, supra note 178, at 24–28, 24 n.99 (“Scholars of negotiated structural governance generally agree that institutional bargaining is inevitable in the absence of clear constitutional entitlements.”).
177. See Ryan, Structural Constitution, supra note 178, at 10, 24 & n.99 (listing at least fifteen preeminent scholars who “acknowledge that structural bargaining takes place among the major institutions of governance, usually in response to uncertainty about which institutional actor is constitutionally privileged in a given context”). As Aziz Huq has explained, “Absent some novel theoretical account of how to decompose the Constitution into clear and distinct elementary particles—an account that eluded the Founders—boundary disputes between branches and between governments recognized in the Constitution will remain pervasive.” Huq, supra note 179, at 1662.
178. U.S. (4 Wheat.) 316, 407 (1819).
179. Heather K. Gerken, Federalism as the New Nationalism: An Overview, 123 Yale L.J. 1889, 1894 (2014); see also Cristina M. Rodríguez, Negotiating Conflict Through Federalism: Institutional and Popular Perspectives, 123 Yale L.J. 2094, 2097 (2014) [hereinafter Rodríguez, Negotiating Conflict] (stating American federalism “creates a multiplicity of institutions with lawmaking power through which to develop national consensus, while establishing a system of government that allows for meaningful expressions of disagreement when consensus fractures or proves elusive”).
180. See Erin Ryan, Federalism and the Tug of War Within 349 (2011) (“Bargaining that procedurally safeguards rights, enhances participation, fosters innovation, and harnesses interjurisdictional synergy accomplishes what federalism is designed to do—and what federalism interpretation is ultimately for. As such, it warrants interpretive deference from a reviewing court.”); Gerken, supra note 182, at 1892 (“It is possible to imagine federalism integrating rather than dividing the national polity.”).
181. Rodríguez, Negotiating Conflict, supra note 182, at 2097 (defining “discretionary spaces of federalism” as “policy conversations and bureaucratic negotiations that actors within the system must have to figure out how to interact with one another both vertically and horizontally”).
182. See Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459, 477–86 (2012) (classifying cooperative enforcement of federal immigration law as example of “concurrent delegation”); Hu, supra note 74, at 594 (noting “political branches are actively engaged in the ‘devolution’ of immigration law by delegating essential immigration screening, or federal immigration gatekeeping duties and responsibilities, to private third-parties, such as employers, and state agents, such as state and local police officers”); Huntington, supra note 22, 839–41 (assessing feasibility of delegating federal immigration authority to states). See generally, Wishnie, supra note 60, at 558 (arguing “we should embrace nondevolvability [of federal immigration power] on principle”). Devolution may in fact be a particularly apt description of changes in the balance of immigration authority in recent years. According to John Kincaid, “What is currently referred to as devolution is more accurately called ‘restoration’ or ‘rebalancing’ of powers between the federal government and the states to conform more closely to what the authors of the Constitution had in mind.” Robert Tannenwald, Devolution: The New Federalism—An Overview, New Eng. Econ. Rev., May–Jun. 1998, at 2, https://www.bostonfed.org/economic/neer/neer1998/neer398b.pdf [https://perma.cc/C49K-YE52]; see also id. (“Devolution connotes a surrender of a function by a superior government to a subordinate government that is generally complete, permanent, and of ‘constitutional magnitude.’”). This definition aptly describes immigration federalism, which advocates a rebalancing of immigration power to better approximate the role states originally played in immigration regulation before the late nineteenth century (that is to say, an active one). See supra section I.A.1 (describing transfer of state immigration authority effectuated by plenary power doctrine).
183. See Kramer, supra note 103, at 1523 (1999) (“[P]olitical relationship[s] drive[] constitutional power and practice.”).
184. See, e.g., Jonathan R. Macey, Federal Deference to Local Regulators and Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 Va. L. Rev. 265, 284–85, 289 (1990) (“Congress might … defer to the states in order to avoid the loss of political support on issues for which there is no clear national consensus.”); id. at 285 (explaining, faced with “imperfect information” about what “‘his [or her] constituents want,’” legislator may maximize political support by “turn[ing] the matter … over to the states”(quoting Peter H. Aronson, Ernest Gelhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 Cornell L. Rev. 1, 60 (1983))).
185. See id. at 267 (“[T]he supremacy clause is a considerable source of political rents for Congress because it allows Congress to obtain political support by permitting independent or concomitant state regulation at little or no political cost to itself.”); see also id. at 267–76 (listing and describing reasons for congressional policymaking deference to states and clarifying “deferring to state lawmakers does not deprive federal lawmakers of political support”); cf. Bulman-Pozen, supra note 185, at 484–85 (arguing existence of restrictionist state immigration schemes signals congressional deference to state power and that such deference results from “broader political climate” and “politics of [the] particular issue”). Moreover, because Congress can ultimately preempt subsequent state regulation, the long-term risk of state overreach remains quite low. See Macey, supra note 187, at 286 (“Congress always can decide to regulate when and if interest-group political support galvanizes around a particular regulatory solution, thereby signaling Congress that it can intervene safely.”).
186. U.S. 579 (1952).
187. See infra notes 196–201 and accompanying text (sampling scholarly conclusions). 191. See Youngstown, 343 U.S. at 635–38 (Jackson, J., concurring) (delineating categories without clearly defining operative terms such as “implied authorization,” or explaining whether and when categories overlap).
188. See id. at 637 (Jackson, J., concurring) (specifying zone of twilight results from “congressional inertia, indifference or quiescence”).
189. See infra notes 215–218 and accompanying text (describing anachronism of formal separation-of-powers model).
190. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2314 (2006) (noting omission of vertical politics from separation-ofpowers doctrine has “generated judicial decisions and theoretical rationalizations that float entirely free of any functional justification grounded in the actual workings of separation of powers”).
191. Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
192. Blackman, supra note 18, at 28–29, 36, 40–42 (internal quotation marks omitted). According to Blackman, DACA falls within Youngstown’s third zone because Congress “expressly declined to enact it” in failing to pass the DREAM Act, which constituted “a decision on policy in and of itself,” and a clear signal to the Executive of congressional disapproval. Id. at 41–42; see also Gilbert, supra note 16, at 278–79 (“Critics of DACA … argue that Congress considered and rejected various versions of the DREAM Act, whose eligibility criteria DACA closely mirrors. Thus … when the Executive promulgated DACA, it was On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 788–89 (2013))). But see Jou-Chi Ho, Unfulfilled Promises, Educating to Deport: Plyler Students at 30, in We Build Our Bridges Together: 2013 Monograph Series 348, 367 (Nat’l Ass’n of African Am. Studies et al., Feb. 2013), https://www.naaas.org/wp-content/uploads/2014/09/2013monograph.pdf [http://perma.cc/R4P3-FY23] (stating, with respect to DREAM Act, “President Obama’s new immigration policy does not grant citizenship to unauthorized alien students” and concluding “he is [therefore] not in conflict with congressional naturalization authority”). In a more recent article, Blackman reached the same conclusion regarding President Obama’s enjoined DAPA program. See Josh Blackman, The Constitutionality of DAPA Part II: Faithfully Executing the Law, 19 Tex. Rev. L. & Pol. 213, 265 (2015) (“DAPA falls into Jackson’s third tier, where the executive’s power is at its ‘lowest ebb.’”.
193. John Ira Jones IV, Taking Care, or Prosecutorial Indiscretion? President Obama’s Immigration Action in Historical Context (Nov. 21, 2014) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584596 (on file with the Columbia Law Review).
194. See, e.g., Amended Complaint at 16, Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) (No. 3:12-CV-03247-O), 2012 WL 5199509, ¶ 77 (“No federal regulation authorizes the conferral of the benefit of deferred action to an entire category of unlawfully present aliens … .”); Jan Ting, Ctr. for Immigration Studies, President Obama’s “Deferred Action” Program for Illegal Aliens Is Plainly Unconstitutional 13–15 (2014), http://cis.org/sites/cis.org/files/ting-plan-unconstitutional_0.pdf [http://perma.cc/S4V8-WDKR] (stating President “enjoys no constitutional authority to facilitate the employment of aliens,” and DACA not only usurps “Congress’s otherwise exclusive authority” but also directly violates a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996”).
195. Gilbert, supra note 16, at 279 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). 200. Ho, supra note 196, at 368.
196. U.S. 537, 542 (1950) (finding power to dictate exclusionary policy “inherent in the executive power to control the foreign affairs of the nation” (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893))). While Knauff represents a high-water mark of presidential discretion, deference to executive authority is still a fixture in immigration jurisprudence. Professor Rodríguez points to three recent cases in particular, INS v. Abudu, 485 U.S. 94 (1988); INS v. Aguirre-Aguirre, 526 U.S. 415 (1999); and Jama v. ICE, 534 U.S. 335 (2005), all of which “emphasize that deference to the Executive Branch is especially important in the immigra tion context.” See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 480–82 & n.71 (2009).
197. Arpaio v. Obama, 27 F. Supp. 3d 185, 194 (D.D.C. 2014) (citing 8 U.S.C. §§ 1154(a)(1)(D)(i)(II), (IV)); id. § 1227(d)(1); id. § 1227(d)(2); REAL ID Act of 2005, Pub. L. No. 109-13, div. B., 119 Stat. 231, 302 (codified at 49 U.S.C. § 30301 note)); accord Shoba Sivraprasad Wadhia, In Defense of DACA, Deferred Action, and the DREAM Act, 91 Tex. L. Rev. See Also 59, 62, 65 (2012), http://www.texaslrev.com/wp-content/uploads/Wadhia.pdf [http://perma.cc/LEE7-BP2Y] (responding to claim that DACA violates Take Care Clause and emphasizing “U.S. Congress has affirmed the role of prosecutorial discretion in immigration law”.
198. See Huq, supra note 179, at 1597–602 (stating legal scholars “are just beginning to explore systematically the [proposition] that institutions such as states or federal branches might negotiate over their constitutional entitlements” and observing “[b]oth states and branches engage in such bargaining routinely, notwithstanding scholarly inattention to the practice”); Ryan, Negotiating Federalism, supra note 178, at 4 (critiquing “stylized model of zero-sum federalism dominating political discourse, which emphasizes winner-takes-all jurisdictional competition,” and “[c]ontemporary judicial doctrine present[ing] a similarly wooden view of sovereign antagonism within American federalism”).
199. See, e.g., Bulman-Pozen, supra note 185, at 461 (acknowledging tendency to “overlook how federalism affects the separation of powers”).
200. See supra notes 196–202 and accompanying text (detailing claims).
201. Victoria Nourse, The Vertical Separation of Powers, 49 Duke L.J. 749, 752 (1999).
202. Mark Tushnet, Subconstitutional Constitutional Law: Supplement, Sham, or Substitute?, 42 Wm. & Mary L. Rev. 1871, 1879 (2001) (noting purpose of subconstitutional norms “is to ensure full consideration of constitutional norms by the political branches without dictating the content of those branches’ conclusions”); see also Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 Wm. & Mary L. Rev. 1575, 1583–84, 1587 (2001) (listing what author terms “‘structural’ doctrines or rules,” explaining, “these rules operate[] to safeguard some identifiable substantive constitutional value,” and categorizing federalism as one such value).
203. See Motomura, Curious Evolution, supra note 39, at 1627 n.11 (defining “phantom” constitutional norms as principles “real enough to influence statutory interpretation, but not real enough to govern explicitly constitutional decisions”).
204. See Ryan, Structural Constitution, supra note 178, at 16 (describing balanced federalism, which “recognizes the primary role of vertical bargaining to allocate contested authority in the conduct of federalism-sensitive governance”).
205. Id. at 13–16 (arguing if bargaining over institutional power “is conducted in a manner … consistent with the fundamental federalism values, then the results warrant deference as a legitimate means of allocating contested constitutional authority,” and such deference harnesses “unique governance capacities of local and national actors”). 211. See id. at 16 (stating balanced federalism advocates “horizontal bargaining among the three branches to appropriately shift authority for resolving distinct interpretive dilemmas to the branch possessing the institutional capacity best suited for the task”).
206. See Coenen, supra note 207, at 1689–98 (discussing cases in which Supreme Court refused to impose “federalism-based limit[s] on congressional action” where “‘national political process did not operate in a defective manner’” (quoting South Carolina v. Baker, 485 U.S. 505, 513 (1988))).
207. See supra section I.A.2 (discussing states’ varied strategies for regulating immigrants).
208. See, e.g., Catalina Restrepo, Annual Review of State-Level Immigration Policy Still Trending Pro-Immigrant, Immigration Impact (Aug. 11, 2015), http://immigrationimpact.com/2015/08/11/state-immigration-laws-2015/ [http://perma.cc/DP3U-5Q8D] (“After long legal battles over punitive, state anti-immigration laws … states have begun moving in a new direction by more generally enacting state immigration laws that seek to protect, integrate and capitalize on the social and economic opportunities immigration brings.”). Seven states bucked the trend by “pass[ing] resolutions that encourage the federal government to take action on immigration.” See id. These states are clearly in the minority.
209. See Malcolm P. Sharp, The Classical American Doctrine of “The Separation of Powers,” 2 U. Chi. L. Rev. 385, 394 (1935) (“The idea that a separation of three powers of government among three separate organs is a natural and desirable thing, expressed in different forms by … classical authorities in America … became a part of our informed if not ‘scientific’ public opinion.”).
210. See Nourse, supra note 206, at 755 (“So-called formal approaches to the separation of powers … insist that it is possible to achieve departmental separation if we simply hew to a sufficiently rigid tripartite formula.”).
211. See generally Bulman-Pozen, supra note 185, at 464 (arguing due to administrative state “we no longer principally have two independent systems, federalism and the separation of powers, … but rather an interdependent system”); see also Levinson & Pildes, supra note 194, at 2313 (“Few aspects of the founding generation’s political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers.”); Nourse, supra note 206, at 753 (“[T]he vertical separation of powers may help us understand the ‘realism gap’ between the nation’s political life and the Supreme Court’s recent and most controversial separation of powers cases … .”).
212. See, e.g., Bulman-Pozen, supra note 185, at 465–68 (stating political process provides incentives to Congress to restrict or expand scope of executive power).
213. See Nourse, supra note 206, at 763–64 (“[S]ignificant across-the-board changes in … fundamental electoral relationships could change political incentives and thus structure.”). 220. Id. at 752.
214. See generally Arthur M. Schlesinger, Jr., The Imperial Presidency (1973) (coining term “imperial presidency”).
215. Cf. Larry D. Kramer, Putting the Political Safeguards Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215, 224 (2000) (“[T]he cooperation and deference we observe between officials at the different levels of government is produced by extraconstitutional institutions that link their political fortunes—institutions … like political parties and an interlocking administrative bureaucracy.”); Levinson & Pildes, supra note 194, at 2347 (“Viewing separation of powers in light of political parties … identif[ies] the political conditions under which we should expect to find higher and lower levels of congressional skepticism of, and opposition to, executive actions.”).
216. Levinson & Pildes, supra note 194, at 2341.
217. Bulman-Pozen, supra note 185, at 468.
218. See Philip Bobbitt, Youngstown: Pages from the Book of Disquietude, 19 Const. Comment. 3, 8–12 (2002) (“Justice Jackson announces early on in his concurrence that he will be offering a structural argument.”).
219. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J., concurring).
220. Id. at 653 (Jackson, J., concurring) (“Subtle shifts take place in the centers of real power that do not show on the face of the Constitution.”); cf. id. at 635 (“The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.”); id. at 640 (“[B]ecause the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times.”).
221. See id. at 654 (Jackson, J., concurring) (“[The] rise of the party system has made a significant extraconstitutional supplement to real executive power … . Party loyalties and interests … extend his effective control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution.”).
222. See, e.g., Herman C. Pritchett, Civil Liberties and the Vinson Court 206 (1954) (“[A]ll other [separation of powers] cases pale into insignificance.”); David Grey Adler, The Steel Seizure Case and Inherent Presidential Power, 19 Const. Comment. 155, 156–57 (2002) (“Youngstown featured the most thorough judicial exploration of presidential powers in the history of the Republic, and it constituted the most significant judicial commentary in the 20th century on the limits of those powers.” (footnote omitted)).
223. Youngstown, 343 U.S. at 637 (Jackson, J., concurring).