The States of Immigration

Immigration is a national issue and a federal responsibility. So why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that courts are likely to enjoin or strike down? Why do they give so little priority to the immigration laws that do survive? This Article sheds light on this seemingly irrational behavior. It argues that state laws are being pursued less for their regulatory impact and more for their ability to shape federal immigration policy making. States have assumed this role because, as alternative policy venues, they offer political actors a way to reframe the public perception of an issue and shift debates to more favorable ground. Moreover, states are able to exert this kind of influence without having to legally implement or effectively enforce their laws. This theory offers an explanation for why states have so frequently been drawn into policy disputes over immigration in the past, such as those that led to the major immigration reforms of 1986 and 1996. It also casts new light on more recent state responses, such as Arizona’s controversial 2010 immigration enforcement law

The Immigrant City

Jurists, policymakers, and legal scholars often do not consider the issue of immigration from a local perspective. As such, the intersection between immigration and local government law has largely been neglected in the legal academic literature. Instead of subscribing to the conventional belief that immigration and local governments are doctrinally distinct, this article uncovers their latent intersection, explore how competing but often unexamined concerns about local governments in legal doctrine conceal the mutual impact that immigration and local government laws have upon one another, and use this analysis to explore how legal rules can be changed to enhance the positive roles that local governments can play in our national immigration project. If we tend to consider the issue of immigration from a purely federal perspective, it is not solely because immigration implicates national interests that require the institutional judgment of the federal government. Indeed, underlying the presumption of federal exclusivity are also three competing models of the immigrant city that correspond with often unexamined fears regarding the relationship between local governments and their immigrant populations. Highlighting these concerns not only leads to a more nuanced understanding of what underlies our bias against local participation with regard to immigration, but also allows us to imagine alternative distribution of powers and responsibilities between federal and local governments. I argue that by changing the incentive structure created by the legal rules governing local governments, we can begin to reimagine our immigrant cities as being a contribution rather than an obstacle to the substantive goals of our immigration project

Locating Keith Aoki: Space, Geography, and Local Government Law

The late legal scholar Keith Aoki wrote on a wide range of legal issues, from intellectual property and genetic engineering to immigration and racial politics. This retrospective highlights his work on space, legal geography, and local government law. Aoki not only began his legal career exploring these issues, he also continuously drew upon their insights to frame legal inquiries in other fields as the scope of his research expanded. This essay shows Aoki to be more than an innovator in the study of space, legal geography and local government law. Indeed, he was one of their most important ambassadors

A Localist Reading of Local Immigration Regulations

The conventional account of immigration-related activity at the local level often assumes that the local is simply a new battleground in the national immigration debates. This article questions that presumption. Foregrounding the legal rules that define local governments and channels local action, this article argues that the local immigration crisis is much less a consequence of federal immigration policy than normally assumed. Rather, it can also be understood as a familiar byproduct of localism: the legal and cultural assumptions that shape how we structure and organize local communities, provide and allocate local services, and define the legal relationship of local, state, and federal governments. From this perspective, local immigration regulations are not unprecedented forays by local governments into uncharted and unfamiliar territory; instead, they reflect a natural extension of how we\u27ve traditionally used legal rules to organize our local communities to deal with demographic and socioeconomic diversity and change. Recognizing this not only allows us to develop a more accurate descriptive account of the framework within which localities act with respect to immigration, it also reveals the limitations of national- or federal-oriented immigration proposals and highlights the possibilities of local legal reforms as an alternative

Notes on the Multiple Facets of Immigration Federalism

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and tensions that underlie the very concept and promise of federalism itself. Because of this, the stake of immigration federalism cannot help but be driven into contested grounds. This essay is an initial foray into the issues that arise when some of the complexities of the federalism discourse are superimposed on the emerging field of immigration federalism. It does so by exploring the contemporary issues surrounding immigration through the lens of three different understandings of our federalist structure: as dueling sovereigns, transacting parties, and overlapping communities. These frames offer a way of talking about immigration federalism which goes beyond simply applying general values of federalism to the field of immigration regulation and enforcement. They also suggest that the best way to tackle this issue is to refrain from seeing immigration jurisprudence as distinct and separate from the broader federalism discourse; instead, we should understand it as always having been a part of the ongoing refinement of our federalist structure

Working on Immigration: Three Models of Labor and Employment Regulation

The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration. Shifting the focus, I suggest here that longstanding disagreements in the world of economic regulations — in particular, tensions over the government’s role in regulating labor conditions and employment practices — also explains much of the difficulty behind formulating a policy approach to immigration. In other words, we cannot reach a political consensus on how to regulate immigration in part because we cannot agree on the role that the government should play in labor and employment regulations. This essay argues that labor and employment regulations have traditionally imagined government intervention in three distinct ways. Each envisions government intervention at a different level in the national economy. Each adheres to a different view about what kind of employment terms the government should set, if any. As political and ideological frameworks, these three approaches offer insights into how economic regulations pertaining to labor and employment, including those regulations pertaining to immigration. Indeed, these three approaches have not only shaped the historical development of our nation’s immigration laws, but also continue to divide efforts toward comprehensive reform today

Urban Politics and the Assimilation of Immigrant Voters

Despite the growing strength of immigrant voters in the U.S., immigrants continue to participate at the polls in much lower rates than not only native voters, but also immigrants in the past. What accounts for this disparity? Looking beyond the characteristics of the immigrants themselves, this essay argues that a major reason lies in the different political structure that immigrants face upon their arrival, especially at the local level. Tracing the evolution of big city politics alongside, and in response to, the three major waves of foreign immigration to the U.S., this essay outlines three competing models of immigrant political assimilation. Each of these models corresponds with a specific era of urban politics: (1) the machine cities of the mid- to late-nineteenth century, (2) the reform cities of the early twentieth century, and (3) the fragmented cities of today. Not only are these models useful for understanding the political behavior of immigrants in different eras of American history, they also shed light on contemporary debates on citizenship, immigration policymaking, and conditions for political participation