Washington Post
By Pratheepan Gulasekaram and Karthick Ramakrishnan
September 23, 2015
Arguments over the proper relationship between federal and state governments have been looming in the presidential campaign. The GOP candidates recently brought the issue of federalism front and center when discussing marijuana. For instance, in the second Republican primary debate, Rand Paul strongly defended the rights of states like Colorado to pass laws that legalize marijuana; Jeb Bush and Chris Christie came down on the side of strong federal enforcement.
Curiously, the candidates did not discuss the role of states in regulating immigration, which featured prominently in the 2012 election. So far, GOP presidential hopefuls have offered controversial statements and proposals for national reform that would be difficult to implement, ranging from ending birthright citizenship to building more walls and deporting millions of undocumented residents.
But these proposals for federal immigration reform face little chance of becoming law. Congress will almost certainly be strongly partisan and divided through at least 2020. Federal immigration legislation, whether permissive or restrictive, appears highly unlikely. And states and localities have stepped into the breach.
As we argue in our new book, “The New Immigration Federalism,” state and local immigration regulation has now become a central feature of our national policy landscape. The decade following 9/11 saw a sharp increase in state and local immigration regulation. Until 2012, the weight of that trend was restrictionist, highlighted by high profile enactments like Arizona’s SB 1070 that sought to create new state-level penalties for being in the country illegally. Since 2012, however, the state and local tide has turned largely integrationist.
This reality upends the long-held notion that immigration is solely a federal responsibility. To be sure, visas, national citizenship, and deportation remain squarely under federal control, as the U.S. Supreme Court made clear in its landmark 2012 decision Arizona v. United States. But state and local policies affect the daily lives of immigrants profoundly on everything from access to public higher education to health insurance coverage to driver’s licenses. Such state-level changes will be difficult to undo, no matter who becomes president in 2017.
For example, California, New York, and Illinois have enacted a suite of policies that confer meaningful membership to all residents, including the undocumented. The “California Package” of immigrant-friendly laws is popular in a state that accounts for a quarter of all undocumented immigrants in the United States. A few states and localities have already passed important components of the “California Package,” and we can expect a widening and deepening of state and local policy adoption, especially in places with Democratic majorities and a sizeable proportion of Latino voters.
By contrast, Republican-controlled states have passed aspects of the “Arizona Package” that include penalties on employers who don’t comply with e-Verify, bans on city “sanctuary laws,” and denial of in-state tuition. Given this variegated state policy landscape and its strong correlation with partisanship, it will be very difficult for Congress and the president to pass federal laws that run roughshod over these state and local enactments.
The federal government relies on the states to help carry out its immigration policy
In addition, the federal government leans on state systems to administer key parts of immigration policy. For instance, the federal Priority Enforcement Program (PEP) relies on local police to send fingerprints and other information to Immigration and Customs Enforcement (ICE) so that ICE can decide who to deport. This reliance on the informational advantages available to local police continues to be critical in fashioning federal enforcement policy.
Indeed, the Secure Communities Program, the predecessor federal enforcement program to PEP, more robustly conscripted local police, with ICE issuing “detainers” or “hold requests” that directed local police to hold an individual so that ICE could pick them up. In dismantling Secure Communities and replacing it with PEP, DHS Secretary Jeh Johnson specifically noted the state and local resistance to these detainers as motivation for reimagining the way in which federal authorities would interact
Similarly, federal law gives state welfare systems some control over whether noncitizens are eligible for public assistance. While some states have exercised that authority to restrict the public assistance only to those required by federal law, others have chosen to provide broader welfare coverage. Five states with high-immigrant populations – California, Illinois, Massachusetts, New York, and Washington – provide immigrant children access to health insurance regardless of legal status. Other states have expanded pregnancy and low-income health insurance coverage in ways that benefit immigrant populations.
And even when the White House declared undocumented immigrants who arrived here as children are free to stay and to work, as it did with its Deferred Action for Child Arrivals (DACA) program, states have to decide whether or not to help those recipients maximize their opportunities. The ability to attend school or seek work is meaningful only if state laws also provide in-state tuition, financial aid, driver’s licenses, and access to health insurance.
Immigration is going to continue being a hot and provocative topic throughout the presidential primaries. But the heat is unlikely to come with any light. Donald Trump and others may energize some potential voters with extreme proposals, but that’s not what leads to national change. For now and for the foreseeable future, the U.S.’s most significant changes on immigration will be happening in the states. Those who want to reform immigration may well do better to push for piecemeal changes at the state level than to chase comprehensive reform federally.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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