With Congress divided over comprehensive immigration reform, federal and subfederal actors have stepped into the breach. In 2012 and 2014, in an effort to counter congressional paralysis, President Barack Obama extended deferred action to millions of undocumented noncitizen children and their parents. In doing so, he reignited debates about the constitutional boundaries of executive power. Among other things, these debates have highlighted the ephemerality of executive directives, raising questions as to whether beneficiaries of deferred action will be stripped of its entitlements once the Obama Administration cedes office.

This Note addresses the durability of Deferred Action for Childhood Arrivals (DACA) and its attendant benefits post-Obama. It argues that by entrenching integrationist policies at the subfederal level, state and local actors can legitimize and ultimately constitutionalize deferred action and the benefits available to immigrants thereunder. In doing so, it demonstrates the fallacy of federal exclusivity in the regulation of noncitizens and documents an ongoing reallocation of constitutional immigration authority to state and local actors. Lastly, it situates DACA in Youngstown’s tripartite framework and proposes the framework be expanded to better reflect evolving trends in American federalism.


The narrative is by now familiar: Faced with congressional deadlock and a “[f]ederal [g]overnment that does not want to enforce the immi­gration laws,” states have taken up the reins of immigration regulation. 1 Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J., concurring in part and dissenting in part). The purpose and tenor of subfederal immigration law vary by locality. Some states, hoping to drive undocumented immigrants out, wield the law as a sword, denying unauthorized noncitizens benefits and privileges under state law as a means of deterring newcomers and promoting “self-deportation” 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-L‌
AQY] (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”).
or “attrition through enforcement.” 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). In other states, pro-immigrant leg­islation facilitates an unprecedented degree of social integration, promis­ing opportunity and bodily safety at the local level. 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-2
014-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)).
Yet state action tells only half the story behind the current immigration landscape. While states legislated, President Barack Obama muscularly deployed executive power to reorient national immigration policy. Frustrated by congres­sional paralysis, the Administration initiated Deferred Action for Childhood Arrivals (DACA) in 2012, which accorded approximately 1.2 million un­documented youth respite from the specter of deportation. 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-disc
retion-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”).
In 2014, President Obama significantly expanded DACA’s scope, suspending the initial age cap and relaxing the original date-of-entry requirement. 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.
Should these modifications go into effect, 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-immigration-supreme-court-216100 [http://perma.cc/L366-J4BX] (describing Administration’s reaction to Fifth Circuit ruling). deferred action will extend to approx­imately 300,000 additional immigrant youth as well as the roughly four million undocumented parents of American citizens and legal per­ma­nent residents, 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-immi
gration.html (on file with the Columbia Law Review) (presenting data on new DACA policy).
making nearly half of America’s unauthorized popula­tion eligible for work authorization and lawful presence. 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.

President Obama’s unabashed use of executive power in implement­ing DACA provoked divided commentary from the start. Supporters em­phasize the policy’s socioeconomic benefits and humanitarian appeal. Con­stitutionally speaking, they consider DACA a permissible—even unre­markable—instantiation of presidential power. 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/how-far-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]ong-standing 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/oba
ma-immigration-speech.html (on file with the Columbia Law Review).
In contrast, opponents tend to decry the policy as foisting upon states unwanted economic and social burdens. 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/U9
P3-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/t
he-fix/wp/2015/09/16/annotated-transcript-september-16-gop-debate [http://perma.cc/G
ZQ8-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”).
On the constitutional front, detractors classify deferred action as interbranch power mongering, an exercise in executive aggrandize­ment. 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/us-to-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-unconstitution
al-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)).
Legal analyses have reproduced this rift in popular opinion as aca­demics set forth opposing accounts of DACA’s doctrinal legitimacy. 13 See infra Part III (discussing differing opinions as to DACA’s constitutionality). These assessments—both popular and academic—have focused on DACA’s consti­tutionality in the abstract. Yet, for DACA beneficiaries, curiosity about the program’s doctrinal standing is crucial only insofar as it sheds light on the fate of millions of noncitizens who have come to rely on deferred ac­tion for their dignity, livelihood, future, and freedom. 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/20
14/10/dreamers-renew-status-they-face-both-opportunities-and-fears [http://perma.cc/4T
JU-LGN7] (“‘I just can’t comprehend my life without DACA or being able to contrib­ute to this country the way I am now.’”).
For them, DACA’s legality is more than a topic of spirited debate. It represents promotion from an “underclass” “caste” 15 Plyler v. Doe, 457 U.S. 202, 218–19 (1982). and a chance at true, productive member­ship in American society.

This Note assesses the likelihood that noncitizen DACA beneficiaries will continue to enjoy the benefits and entitlements of deferred action af­ter the Obama Administration cedes power. Some have attempted to ad­dress this question. Professor Lauren Gilbert suggests the President’s “bold assertion of Executive authority will have lasting impact” only if it “serves as a stepping stone to . . . comprehensive immigration reform.” 16 Lauren Gilbert, Obama’s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 310 (2013). Simi­larly, Daniel Arellano argues, “[President Obama’s] policies are like­ly to have little lasting effect without further legislative action.” 17 Arellano, supra note 10, at 1140. Other schol­ars to consider the matter, whether directly or collaterally, tend to agree. 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.cf
m?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”).
These conclusions oversimplify the constitutional issue by char­acterizing DACA as a dichotomous conflict between Congress and the Executive to the exclusion of all other constitutional entities. This char­ac­terization ignores the reality of immigration policymaking in modern American government. In contrast, this Note emphasizes the vital entrée President Obama’s deferred action strategy has opened for states into the domain of immigration policy and argues that as states claim an increas­ingly robust role in regulating immigrants, federalism demands consider­ation of their sovereign prerogative in assessing the constitutionality and durability of DACA and its attendant benefits.

This Note proceeds in several parts. Part I opens with a brief history of American immigration federalism. 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”). Section I.A.1 traces fluctuations in state and federal immigration power from the colonial era to the present and deconstructs the myth of federal exclusivity that has justified the ju­dicial minimization of states’ role in setting national immigration policy. Section I.A.2 describes the momentous shift in constitutional immigra­tion power to the subfederal level that has taken place during the Obama Administration, further undermining the received narrative of federal im­migration supremacy as constitutional axiom. Part II argues that a return to robust subfederal immigration authority may be preferable to renewed federal dominance and possible under the Supreme Court’s most recent immigration precedent. It then reveals how integrationist states can use their newly reclaimed immigration authority to entrench policies such as DACA indefinitely. Finally, Part III locates Obamian immigration reform within the traditional tripartite framework for executive action announced in Youngstown Sheet & Tube Co. v. Sawyer and suggests the framework be expanded to include calculations of state power. 20 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring in the judgment) (delineat­ing three zones of presidential power). So modified, Youngstown’s schema not only resolves questions as to DACA’s constitutionality but also better accounts for the real-world distribution of policymaking authority within our federalist system, encouraging precedent more closely aligned with the live dimensions of American government. Ultimately, this Note argues that subfederal political support, if carefully cultivated and deftly maneuvered, can succeed in ratifying Obamian immigration reform, both within the Youngstown framework and as a matter of popular constitutionalism.

I. An Inconstant Power: Constitutionalizing Immigration Regulation

That the power to regulate immigration must reside, as a matter of logic, in the federal government is a nearly axiomatic proposition in American law. Indeed, classical immigration law depicts Congress’s power over non­citizens as absolute—the so-called plenary power doctrine. 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 . . . .”). Yet from a textual standpoint, the Constitution hardly demands federal exclusivity in immigration. 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 naturaliza­tion.”); 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”). Despite its constitutional complexion, the plenary pow­er doctrine is a jurisprudential myth, produced by grafting extratextual norms onto ambiguous constitutional language. 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).
Perhaps because of this unconventional pedigree, the doctrine has proven unsteady. Scholars have chronicled plenary power’s slow, twentieth-century decline. 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”). Now, in the twenty-first century, this erosion seems to have gained speed. As states com­pensate for Congress’s abstinence in immigration regulation, plenary pow­er appears increasingly vestigial.

This Part details the rise and fall of plenary power, placing particular emphasis on periodic shifts in the degree of immigration authority ac­corded the federal government and states, respectively. It then assesses the impact President Obama’s deferred action policies have had on the allocation of immigration authority between state and federal govern­ments, updates existing historical accounts, and delineates the current power balance. In doing so, it undercuts the popular perception of fed­eral immigration supremacy as constitutional axiom.

A. Plenary Power Cradle to Grave

1. Immigration in the Premodern Era. — Immigration regulation was a purely local affair in colonial America. Structured around royal charters with a distant sovereign, colonial governments enjoyed considerable au­tonomy in the management of local affairs, including the authority to de­fine and regulate terms of social membership. 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.”). Immigration laws dif­fered significantly from one locality to the next as colonies pursued “widely varying policies” of admission, inhabitance, and exclusion. 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). These local­ist policies persisted with the Articles of Confederation, 27 See Hickey, supra note 25, at 10 (explaining localism “translated rather easily into concepts of individual state sovereignty” under Articles of Confederation). under which the fledgling states retained full control over the laws of admission, exclu­sion, and naturalization applied within their borders. 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”). Confederation achieved one notable change, however. Whereas the colonies had been free to disregard their sister settlements in crafting immigration policy, the Articles entitled the “free inhabitants” of each newly formed state “to all privileges and immunities of free citizens in the several States.” 29 Articles of Confederation of 1781, art. IV. Each state was therefore bound to treat as citizens all foreigners naturalized by her sister states, including foreigners inadmissible under a state’s own laws. 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”). Thus, by crossing state lines, naturalized aliens might gain access to privi­leges greater than those available in their own 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”). Conversely, an al­ien might “elude” durational residency requirements necessary for citi­zenship in one state by acquiring citizenship in a jurisdiction with less strin­gent qualifications. 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 . . . .”).

While this legal oddity failed to provoke serious conflict among the confederated states, it posed a risk the Founding Fathers would not abide. James Madison concluded that a system comprised of conflicting natural­ization schemes was simply unworkable. 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”). It was legally incoherent and provided fodder for interstate conflict, 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.”). a prospect at odds with the cen­tral aim of the developing constitutional project. 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). If the new Constitution were to have any chance at “break[ing] and control[ling] the violence of faction” it would therefore have to take naturalization in hand. 36 Id. It would do so “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” 37 The Federalist No. 42, supra note 30, at 270–71. With regard to the reg­ulation of immigrants, constitutional ratification thus effectuated a mo­mentous shift in power from the states to the new federal government. From that point on, congressional legislation would reign supreme, su­perseding state naturalization schemes and seizing from the states a key tool of local identity—at least in theory. 38 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).

In practice, states continued virtually unabated in their regulation of immigrants for close to a century. 39 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.”). Several factors enabled states’ contin­ued regulatory dominance. Declining to pass legislation of its own, the newly instituted Congress implicitly reaffirmed states’ immigration pow­er. 40 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. To meet the new and diverse challenges of nineteenth-century immi­gration, states legislated to fill the void left by congressional inaction. 41 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.”). Furthermore, demand for settlers in America’s sparsely populated west­ern territories weighed against and made impracticable uniform, restric­tionist immigration policies. 42 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.”). Securing and developing the western fron­tier required productive bodies. 43 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”). Thus, at the turn of the nineteenth cen­tury, “the main role for government in immigration was to encourage it.” 44 See Motomura, Americans in Waiting, supra note 22, at 19. To expedite settlement in remote geographic areas not meaning­fully subject to federal control, questions of social suitability and exclu­sion were left to state and territorial governments. 45 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”). Finally, and perhaps most importantly, the concept of naturalization was inextricably bound up in the unresolved debate over slavery. 46 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.”). While northern states consid­ered freedpersons citizens, 47 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.”). the South deemed slaves property and re­sisted efforts to expand the definition of citizen beyond that of “free white person.” 48 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)). Until 1856—the year the Supreme Court handed down its de­cision in Dred Scott 49 Dred Scott v. Sanford, 60 U.S. 393 (1857). —establishing a uniform rule of naturalization would therefore have required Congress take a stance on slavery by announcing a clear definition of “citizen.” 50 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. This proved a more than unsavory proposition.

Thus, it was not until the tail end of the nineteenth century that the balance of immigration authority truly began to shift from the states to the federal government. Several events precipitated this belated transi­tion. The first was the Civil War. Though horrific in its slaughter, the war successfully broke the back of slavery. Northern victory facilitated the pas­sage of the Fourteenth Amendment, which declared African Americans citizens. The definition of “citizen” formally resolved, a major impediment to federal immigration legislation vanished. 51 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”). Second, the Supreme Court took a hard line on state immigration regimes in the postbellum era. The Court had previously flirted with the notion of federal exclusiv­ity in im­migration, 52 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). but its 1889 decision in Chae Chan Ping v. United States placed the naturalization power entirely in the hands of Congress. 53 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.”). In no uncer­tain terms, Justice Field declared the power to regulate immi­gration a uniquely federal “incident of sovereignty.” 54 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.

Out of Chae Chan Ping emerged the plenary power doctrine, which, by the mid-twentieth century, came to encompass a series of broad princi­ples. The first was unqualified federal exclusivity in the enactment, prom­ulgation, and enforcement of immigration laws. 55 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.”). Justice Stevens pro­vided the clearest description of federal exclusivity in Hampton v. Mow Sun Wong, explaining “the authority to control immigration” is “vested solely in the Federal Government, rather than the States.” 56 426 U.S. 88, 101 n.21 (1975) (citing Truax, 239 U.S. at 42). Second, as a means of safeguarding federal exclusivity, the Court developed strict lim­its on the scope of judicial review in immigration cases. 57 See, e.g., id. (“[T]he power over aliens is of a political character and therefore subject only to narrow judicial review.”). Until the late twentieth century, federal appellate courts therefore “abjured any signifi­cant judicial role” in defining immigration policy, 58 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 . . . .”). deferring “almost com­pletely to the decisions of the federal legislature and the executive branch.” 59 Stumpf, supra note 25, at 1572. Consequently, the adjudication of aliens’ constitutional rights became an exercise in near-total deference to federal policy. 60 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). Finally, in necessitat­ing “very strong versions of obstacle and field preemption,” the plenary power doctrine supplanted subfederal immigration laws. 61 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))). Thus, at its height, the plenary power doctrine accorded the federal government carte blanche in regulating immigration, suppressed state power, abetted the curtail­ment of aliens’ constitutional rights, and mandated judicial deference to “practices that were decidedly, sometimes grotesquely, illiberal.” 62 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.”).

Plenary power carried the seeds of its own destruction. As early as 1892, members of the Supreme Court denounced the notion of un­checked federal power over resident aliens, calling it “undisguised des­potism and tyranny.” 63 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. Likely driven by these and similar concerns, the Court began narrowing the scope of plenary power in the mid-twentieth century. 64 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”). In doing so, it initiated a gradual transfer of immigration power back to the states. The shift commenced in 1941 with the Supreme Court’s decision in Hines v. Davidowitz. 65 312 U.S. 52 (1941). Hines involved a challenge to Pennsylvania’s Alien Registration Act, which required that all aliens over the age of eighteen register annually with the state and carry “an alien identification card ‘at all times.’” 66 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. While traditional plenary power rhetoric featured prominently in its opinion, 67 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.”). the Court sidestepped appellees’ claim that federal exclusivity rendered the Pennsylvania statute inherently unconstitutional. It instead construed the issue as one of preemption, “expressly leaving open” appellee’s argu­ment “that the federal power in this field, whether exercised or not, is exclusive.” 68 Id. at 62. More remarkable was the Court’s clear endorsement of concurrent state power. Both the ma­jority and dissent approved the notion of subfederal immigration power, though the majority did so more tepidly, acknowledging only that “[a]ny concurrent state power that may exist is restricted to the narrowest of limits.” 69 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). The dissent delved deeper. “The existence of the national power to conduct foreign relations,” Justice Stone wrote, “does not fore­close state legislation dealing exclusively with aliens as such.” 70 Id. at 77 (Stone, J., dissenting). Validating states’ long time defense to federal exclusivity, Justice Stone deemed the Pennsylvania statute a permissible exercise of state police power. 71 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 . . . .”). Ac­cepting the majority’s preemption framework, he nonetheless offered words of caution: “At a time when the exercise of the federal power is being rapidly expanded through Congressional action, it is difficult to overstate the importance of safeguarding against such diminution of state power by vague inferences as to what Congress might have in­tended” in enacting a given immigration regulation. 72 Id. at 75 (Stone, J., dissenting).

Hines memorialized two key innovations in the Supreme Court’s im­migration jurisprudence. The Court’s opinion effectively tore out the roots of plenary power—Congress’s unqualified supremacy. Conventional accounts of plenary power depicted the doctrine as “smother[ing] the entire field of immigration.” 73 Motomura, Phantom Norms, supra note 39, at 574. In contrast, Hines’s preemption framework preserved a role for the states in regulating noncitizens (albeit a small one). 74 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.”). Hines also introduced a crucial definitional distinction. In his dis­cussion of state police power, Justice Stone distinguished between laws reg­ulating immigration—the “direct regulation of entrance and abode” 75 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.”). —and efforts to regulate the economic and social behavior of immigrants in civil society—what academics refer to as alienage law. 76 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”). It is on the basis of this distinction that the Court officially welcomed states back into the regulatory fold. 77 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). Thus, in De Canas v. Bica, the Court dismissed the argu­ment that “all state regulation of aliens [is] ipso facto regulation of immi­gration.” 78 424 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). “Standing alone,” the Court insisted, “the fact that aliens are the subject of a state statute does not render it a regulation of immigra­tion.” 79 Id. at 355 (emphasis added). Thus, so long as a state law regulated immigrants’ participation in—as opposed to admission or exclusion from—American society, it qual­ified as a permissible use of the state’s power to prescribe alienage law. The Court reaffirmed this doctrinal volte-face seven years later in Plyler v. Doe, offering a contemporary justification for the states’ role in immi­grant affairs. 80 457 U.S. 202 (1982). Repeating the mantra of “exclusive federal control,” the Plyler Court nonetheless refused to conclude that “States are without any pow­er” to regulate and deter immigrants “whose numbers might have a dis­cernible impact on traditional state concerns.” 81 Id. at 228 n.23. The federal government had clearly lost its monopoly on immigration authority.

2. Immigration in the Modern Era.— In recent years, the toehold states gained in Hines, De Canas, and Plyler has precipitated a full-blown con­stitutional schism regarding the limits of subfederal immigration regula­tion. Over the last decade, states have brazenly asserted their immigration authority, stimulated by congressional paralysis and a forceful, “pro-immigrant” Executive. From 2006–2007, state legislatures spurred a nationwide in­crease of 174% in the number of proposed subfederal immigration bills and a nearly 200% increase in the rate of subsequent enactment. 82 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). From 2008–2014, this flood of subfederal legislation produced 1,885 immigra­tion laws. 83 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). An additional 288 proliferated in 2014, 84 Id. (on file with the Columbia Law Review ) (last visited Oct. 28, 2015) (conducting search for 2014). and in the first six months of 2015 alone, states passed another 153 immigration-related laws. 85 2015 Report on State Immigration Laws (January–June), Nat’l Conference of State Legislatures 1 (July 31, 2015), http://www.ncsl.org/documents/immig/Immigration
Report_July2015.pdf [http://perma.cc/5TJC-2A7Y] [hereinafter Immigrant Policy Project (July 2015)].
Barring drastic congressional or judicial action, it is unlikely states will abandon such legislative efforts anytime soon.

Contemporary subfederal immigration law comes in two flavors, termed “restrictionist” and “integrationist” in this Note. From a constitu­tional perspective, scholars and the national media have devoted greater attention to restrictionist policies, and for good reason. Restrictionist laws such as Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (commonly referred to by its legislative designation, SB 1070) 86 See infra section II.A.2 (discussing Arizona v. United States, 132 S. Ct. 2492 (2012)). and Hazleton, Pennsylvania’s Illegal Immigration Relief Act, 87 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). directly impli­cate or appropriate federal law, thereby raising clear preemption con­cerns. 88 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). In contrast, integrationist policies typically look like archetypal alienage laws, meaning they bear the façade of state police power, arguably falling within the scope of the Tenth Amendment. 89 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. This makes doubts as to their constitutionality “spec­ulative and indirect” 90 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 . . . .”). —in short, unsexy. But the strength of the subfed­eral integrationist movement should not be underestimated. Between 2005–2009, states and localities passed 226 pro-immigrant statutes. 91 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 immigrant-friendly statutes relative to enactment of anti-immigrant ones). In 2013, forty-three states and the District of Columbia adopted 438 immi­gration-related laws and resolu­tions, 92 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)]. with “few exceptions to the gener­al pro-immigrant trend.” 93 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. In 2014, immigrant-friendly statutes continued to gain traction in state­houses across the country, and state lawmakers de­monstrated a strong in­terest in integrationist policies. 94 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/
omepage&module=second-column-region&region=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://immigration
ursue-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.”).
And in its 2015 mid-year report, the National Conference of State Legislatures noted the passage of an addi­tional 391 immigration-related laws and resolutions: a 16% increase com­pared to mid-year 2014. 95 Immigrant Policy Project (July 2015), supra note 85, at 1. Among such measures were bills incentivizing the certification of bilingual teachers (Texas), 96 See id. at 5 (describing Texas’s HB 1 bill, H.B. 1, 84th Leg., Reg. Sess. (Tex. 2015)). lowering barriers to in-state college tuition for undocumented students (Connecticut), 97 See id. (describing Connecticut’s HB 6844 bill, H.B. 6844, 2015 Gen. Assemb., Reg. Sess. (Conn. 2015)). mandating safety skills training for undocumented agricultural workers (Washington), 98 See id. at 6 (describing Washington’s HB 1127 bill, H.B. 1127, 64th Leg., Reg. Sess. (Wash. 2015)). ex­tending access to driver’s licenses (Delaware, Hawaii), 99 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).
requiring “quali­fied health care interpreters to ensure accurate and ade­quate health care for those with limited English proficiency” (Oregon), 100 Immigrant Policy Project (July 2015), supra note 85, at 1. and instituting a statewide director of immigrant integration (California). 101 See id. at 2 (referencing task forces created).

These data are significant for several reasons. First, they illustrate the growing power of the subfederal integrationist movement. States have, to be sure, enacted integrationist legislation throughout the past decade. 102 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). However, recent efforts have focused on nationalizing the integrationist agenda. 103 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/w
p/2014/12/01/mayors-begin-coalition-to-support-obamas-immigration-action [http://per
ma.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 while 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-i
mmigrant-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.”).
This suggests integrationism’s political impact might escalate as states collaborate in the drafting and codification of pro-immigrant legislation. Of course, restrictionist legislators have also acted. For exam­ple, in 2014, well-known restrictionist and Kansas Secretary of State Kris Kobach introduced legislation designed to undermine President Obama’s efforts and hastened the passage of similar bills across the nation. 104 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-im
migration.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”).
Fi­nally, subfederalist rhetoric implies a direct relationship between state action and Obamian immigration policy. As San Francisco Mayor Ed Lee stated, “The President’s bold action on immigration has set the course, and now we must follow through.” 105 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”).

The widespread adoption of subfederal immigration legislation—both restrictionist and integrationist—illuminates another significant fac­et of immigration federalism. It demonstrates mass endorsement of im­migration regulation at the state level; though fueled by the actions of a Democratic President, the expansion of subfederal authority over im­migra­tion has become a bipartisan endeavor in the modern era, one states may not soon abandon.

II. ¿Sí Se Puede? The Constitutionality of Subfederal Reform

The pace and scope of subfederal immigration legislation has blurred the boundaries of federal supremacy and strained the Supreme Court’s preemption jurisprudence. Following President Obama’s lead, states have done far more than question federal exclusivity: They have assumed the ability to regulate noncitizens. “Immigration law is undergoing an un­precedented upheaval,” Keith Cunningham-Parmeter has commented. 106 Keith Cunningham-Parmeter, Forced Federalism: States as Laboratories of Immigration Reform, 62 Hastings L.J. 1673, 1674 (2011). “The field has not experienced such a dramatic shift in power since the nineteenth century.” 107 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”). But one must not put the cart before the horse. States’ regulatory efforts must survive the Supreme Court’s most recent immigration federalism decisions if they are to have any chance at lasting constitutional or political impact.

This Part evaluates the constitutionality of subfederal immigration regulations, relying primarily on the Supreme Court’s recent decisions in Chamber of Commerce v. Whiting 108 131 S. Ct. 1968 (2011). and Arizona v. United States. 109 132 S. Ct. 2492 (2012). Section II.A.1 canvasses the Court’s opinions in Whiting, assessing the degree to which each Justice accepts or rejects the concept of immigration federal­ism. Section II.A.2 does the same with respect to the Court’s opinion in Arizona. Section II.A.3 presents a working conclusion regarding the con­stitutionality of subfederal immigration reform, while section II.B ad­dresses the normative desirability of subfederal reform and discusses the ways in which states can force the constitutionalization of Obamian reform.

A. Constitutional Precipice: Whiting and Beyond

The Supreme Court’s recent immigration decisions provide no de­finitive answers to the constitutional question posed by immigration sub­federalism—namely, whether and to what extent states possess the power to regulate noncitizens. These decisions do, however, provide powerful clues. An analysis of Chamber of Commerce v. Whiting and Arizona v. United States yields significant doctrinal commonalities regarding the permissi­ble allocation of immigration power in the American federalist system. In both cases, the Court takes as given the states’ ability to regulate immi­grants. More importantly, these cases finesse the tenuous balance between state and federal immigration authority and tacitly condone a recalibra­tion of that balance through the political process.

1. Chamber of Commerce v. Whiting. — At issue in Chamber of Commerce v. Whiting was whether Congress’s Immigration Reform and Control Act (IRCA), which prohibits states from imposing criminal sanc­tions for the employment of unauthorized aliens, 110 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”). preempted the Legal Arizona Workers Act (LAWA), which mandated the use of E-Verify and subjected state employers to licensing penalties for knowingly employing unauthorized workers. 111 See Ariz. Rev. Stat. Ann. § 23-212 (2012) (stating “employer[s] shall not know­ingly employ an unauthorized alien” and describing potential ramifications). Despite the laws’ substantial similarity, the Court upheld the Arizona statute. 112 See Whiting, 131 S. Ct. at 1981, 1985 (upholding LAWA and finding it did not conflict with federal scheme). Statist rhetoric permeates the majority opin­ion. Responding to Justice Breyer’s objection that upholding LAWA marked a “departure from ‘one centralized enforcement scheme,’” 113 Id. at 1979 (quoting id. at 1990 (Breyer, J., dissenting)). Chief Justice Roberts wrote, “Congress expressly preserved the ability of the States to impose their own sanctions through licensing; that—like our federal system in general—necessarily entails the prospect of some departure from homogeneity.” 114 Id. at 1979–80; cf. id. at 1975 (critiquing IRCA for “restrict[ing] the ability of States to combat employment of unauthorized workers”). The Court even went so far as to treat the state’s regulatory efforts as unexceptional. Prohibiting the knowing employment of unauthorized aliens, it concluded, “‘is certainly within the mainstream of [the State’s] police power.’” 115 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”).
The dissent did not dis­agree. Justice Breyer, with whom Justice Ginsburg joined, con­strued state regulations as constitutional unless, and until explicitly, preempted by federal law. 116 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”). Dissenting separately, Justice Sotomayor noted that IRCA “displaced. . . myriad state laws,” intimating these laws legally governed prior to IRCA’s enactment. 117 Id. at 2000 (Sotomayor, J., dissenting) (emphasis added).

Unanimous with regard to the existence of state immigration power, the Justices declined to debate the constitutionality of subfederal immi­gration regulation per se. The Court could have easily struck down the Arizona statute as impliedly, structurally, or field preempted, thereby re­affirming federal immigration supremacy. Yet it declined to do so, avoid­ing altogether the question of federal exclusivity. 118 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 be exclusively reserved for Congress. That, the Court signal­ed, is a question Congress must solve in exercising (or declining to exer­cise) its preemptive power—a constitutional rendition of use it or lose it. 119 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”). As Chief Justice Roberts emphasized, “Congress did indeed seek to strike a balance . . . when it enacted IRCA,” and part of that balance “in­volved allocating authority between the Federal Government and the States.” 120 Whiting, 131 S. Ct. at 1984. Upholding Arizona’s foray into immigration regulation thus fell “well within the confines of the authority Congress chose to leave to the States.” 121 Id. at 1981.

Whiting’s clear emphasis on congressional intent demonstrates that the bounds of Congress’s immigration power have become a question of statutory rather than constitutional interpretation. This explains, in part, the Court’s decision to send City of Hazleton v. Lozano back to the Third Circuit, 122 131 S. Ct. 2958 (2011). to deny certiorari in City of Farmers Branch v. Villas at Parkside Partners, 123 134 S. Ct. 1491 (2014). and to deny rehearing in Brewer v. Arizona Dream Act Coalition. 124 757 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))). Moreover, the Justices’ unwavering deference to Congress indicates the Court’s willingness to allow a recalibration of state immigration power—so long as it occurs through the political process. This, of course, is a far cry from declaring subfederal immigration regulations unconstitutional per se.

2. Arizona v. United States. — Arizona v. United States, in which the Court held federal law preempted three out of four provisions of Arizona’s SB 1070, reads initially as an homage to plenary power. “The Government of the United States has broad, undoubted power over the subject of im­migration and the status of al­iens,” Justice Kennedy began. 125 Arizona v. United States, 132 S. Ct. 2492, 2498 (2012). “This au­thority,” he specified, “rests, in part, on the National Government’s con­stitutional power to ‘establish an uniform Rule of Naturalization’ and its inherent power as sovereign to control and conduct relations with foreign nations.” 126 Id. (citations omitted) (quoting U.S. Const., art. I, § 8, cl. 4) (citing Toll v. Moreno, 458 U.S. 1, 10 (1982)). Yet, consistent with the Court’s statist tone in Whiting, Kennedy immediately segued into a discussion of federalist principles. “[B]oth the National and State Gov­ernments have elements of sovereignty the other is bound to respect,” he emphasized, a contention at odds with tradi­tional notions of federal ex­clusivity in immigration. 127 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.”). Moreover, Justice Kennedy reprised language central to Whiting itself. Declaring section 5(C) of the Arizona law pre­empted, he noted a contrary decision “would interfere with the careful balance struck by Congress with respect to unau­thorized employment of aliens.” 128 Arizona, 132 S. Ct. at 2505 (emphasis added). He used the same language to refer­ence the precedential im­port of Hines v. Davidowitz. 129 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))). Justice Kennedy’s message is clear: The scope of congressional immigration power depends more on congres­sional drafting than on any ironclad constitutional allo­cation of power.

The dissent, far from critiquing Justice Kennedy’s federalist ration­ale, complained the majority stopped short of the result federalism de­mands. Justice Scalia characterized the Arizona law as a valid “exercise of [the state’s] own power,” the “implementation of its own policies.” 130 Id. at 2519 (Scalia, J., concurring in part and dissenting in part). In fact, Scalia explicitly endorsed immigration federalism. “In light of the pre­dominance of federal immigration restrictions in modern times,” he warned, “it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so.” 131 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”). Justice Thomas disavowed the propriety of the Court’s preemption analy­sis altogether, finding SB 1070 did not conflict with federal law 132 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 mean-in[g]’ of the relevant federal laws and that of [SB 1070].” (alteration in original) (quot­ing Wyeth v. Levine, 555 U.S. 555, 588 (2009))). and lambasting the majority’s finding of preemption as based on “judicially divined legislative purposes.” 133 Id. at 2524 (Thomas, J., concurring in part and dissenting in part). Justice Alito considered the majority opinion equally problematic. Finding SB 1070 emblematic of “state police pow­ers,” he demanded clearer evidence of congressional preemptive in­tent. 134 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). He also criticized the majority for misconstruing De Canas in sup­port of its holding. Employing classic, albeit outmoded, Tenth Amendment rheto­ric, he offered his own interpretation: “De Canas v. Bica . . . held that em­ployment regulation, even of aliens unlawfully present in this coun­try, is an area of traditional state concern.” 135 Id. (Alito, J., concurring in part and dissenting in part) (citing De Canas v. Bica, 424 U.S. 351, 351 (1976)).

As in Whiting, the Arizona Court unanimously agreed that some sub­federal immigration regulation is per se constitutional. The sole dispute pertained to the degree of subfederal regulation permissible under the Constitution.

3. Forging Consensus. — Scholars rightly critique the Supreme Court’s recent immigration precedent as unclear, 136 See, e.g., Hu, supra note 74, at 570–74 (discussing development and lack of clar­ity in Court’s preemption doctrine). but its opinions in Whiting and Arizona bespeak unanimity among the Justices with respect to the constitutionality of immigration federalism. Notwithstanding Justice Kennedy’s plenary power rhetoric in Arizona, not a single Justice in that case or in Whiting condemned subfederal immigration regulation as un­constitutional per se. 137 See supra section II.A (discussing Whiting and Arizona). Instead, the Justices seemed to agree that con­gressional intent, rather than constitutional necessity, determines the pre­emptive force of federal immigration statutes. In other words, the mod­ern Court has rejected exclusive federal authority over immigration, rely­ing instead on principles of statutory preemption to test the constitutional­ity of state regulations on a case-by-case basis. 138 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.

The demise of federal exclusivity does more than legitimize the sub­federal regulation of noncitizens; it also necessitates a reconceptualiza­tion of the boundary line between federal and state immigration author­ity. Unsurprisingly, Whiting and Arizona eschew any attempt at line draw­ing. Shorn of its plenary power mythos, the Constitution says nothing about the optimal balance of immigration power between the state and federal governments. 139 See supra notes 22–23 and accompanying text (explaining lack of textual evi­dence in Constitution regarding proper allocation of immigration authority). Any effort by the Supreme Court to police the boundary between state and federal immigration power would therefore amount to little more than judicial activism. Accordingly, the Court’s recent defer­ence to Congress in matters of preemption represents a statement re­garding institutional role, a willingness to entrust the current recalibra­tion of constitutional immigration power to the political process. Cru­cially, Whiting and Arizona also exhibit a normative, federalist gloss, hint­ing at the permissibility of returning to an era of robust state immigra­tion authority. 140 See supra section II.A (analyzing federalist rhetoric in Whiting and Arizona).

B. Constitutionalizing Executive Action: The Power of Subfederal Reform

Left uncodified, Obamian immigration policy will expire with the Administration. Deferred action and its attendant benefits might cease to exist, leaving millions of noncitizens at the mercy of an unknown major­ity. Unwilling to forsake the well-being of their noncitizen residents, states around the country have begun to mobilize support for integra­tionist legislation that would entrench Obamian policy at the subfederal level. But success will require states do much more than write existing executive policy into law. To avoid preemption by an unsympathetic Congress, integrationists will have to shift the locus of constitutional immigration power back to the states. 141 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. The possibility of such a shift raises crucial questions. Most importantly, it requires grappling with questions of nor­mative desirability (the why) and questions of implementation (the how). This section addresses both. It first addresses the why, arguing that while perhaps not ideal, a stronger state role in immigration may provide great­er benefits to noncitizens than continued federal dominance. 142 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.”). It then details the how, describing the shift in immigration power precipitated by Obamian reform and how states can leverage the political process to con­stitutionalize the new power dynamic.

1. The Why. — Critics of subfederal immigration regulation focus on the potential for rights abuses at the local level. Localism, they argue, is a double-edged sword. While immigrants in progressive states are likely to benefit from local policies, immigrants in other states will supposedly face increasingly oppressive legislation, a phenomenon described in the literature as a “race to the bottom.” 143 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). Critics also claim localism jeopard­izes the observance and enforcement of immigrants’ constitutional rights in general, and equal protection in particular. 144 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 crucial 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.”).
While these concerns have merit, it is nonetheless important to balance the risks and benefits of reverting to a system of federal regulation against those accompanying continued federal dominance; before reifying the constitutional status quo with aggressive claims of federal preemption, activists and critics must meaningfully assess the likelihood of rights abuses at the local level. As Cristina Rodríguez has observed, “It is important not to cut short the processes by which states learn to integrate immigrants by employing ag­gressive preemption strategies or by presuming that immigration and in­tegration issues should be channeled up to the national level.” 145 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))). Indeed, subfederal immigration regulation may yet prove a sheep in wolf’s clothing.

As recent challenges to state and local laws demonstrate, subfederal immigration regulation risks equal protection violations. 146 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”). What remains unclear is the extent to which federal exclusivity necessarily decreases this risk and whether such violations are more likely to be detected and reme­died by federal actors. 147 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.”). At least some skepticism is in order. Federal pre­rogative has and continues to justify the denial of noncitizens’ human and constitutional rights. 148 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] civ­ilization”); 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.huff
ingtonpost.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”).
Even now, federal exclusivity underlies the asym­metrical application of the equal protection doctrine, whereby state al­ienage classifications receive strict judicial scrutiny while federal alienage classifications must satisfy only rational basis review 149 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”). —and this despite the Court’s clear statement in Graham v. Richardson that “classifications based on alienage” are “inherently suspect and subject to close judicial scrutiny.” 150 403 U.S. 365, 372 (1971) (emphasis added). Finally—and perhaps most problematically—federal domi­nance has encouraged the elision and impeded the development of im­migrants’ substantive rights in constitutional adjudication. When chal­lenging subfederal immigration regulations such as Arizona’s SB 1070, litigators have learned to rely on preemption doctrine over individual rights precedent to support claims of unconstitutionality. 151 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”). Conversely, courts have been able to skirt individual rights questions by deciding cases on preemption grounds. 152 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”). The result is the collateral adjudication of immigrants’ rights, a trend that pushes real issues of race, nativism, and discrimination aside and places questions of federal authority ahead of the Bill of Rights. 153 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))). At this juncture, with federal precedent largely stacked against noncitizens, such strategic avoidance remains prudent. Yet, insist­ing on federal supremacy and, consequently, the preeminence of often­times anti-immigrant precedent, stifles the conversation at both ends. Stare decisis constrains the federal judiciary in matters of immigration pol­icy while supremacy short-circuits the search for alternatives by nonfed­eral actors.

The notion that federal exclusivity better protects noncitizens’ indi­vidual rights also requires a dubious assumption about the nature of con­stitutional law—namely that the constitutional protections aliens cur­rently enjoy are inextricably tied to federal exclusivity. Many immigrants’ rights activists worry that the constitutional protections thus far extended to noncitizens by the Supreme Court will be eroded if states gain the power to regulate immigrants at the local level. It is unclear why this would necessarily be the case. From a doctrinal perspective, deference to state alienage classifications is not constitutionally required and is in fact disallowed under Graham v. Richardson. 154 See Graham, 403 U.S. at 372 (declaring classifications based on alienage inher­ently suspect and therefore subject to strict scrutiny). More fundamentally, immigra­tion federalism would not exempt state alienage classifications from chal­lenges in federal court, nor would a federal court upholding a discrim­inatory law escape the threat of judicial review. 155 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/2014/01/30/322
6951/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”).
This of course assumes federal courts will not relax their scrutiny of state alienage classifications to reflect greater tolerance for subfederal immigration regulation. 156 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 Wishnie, 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. As­suming stare decisis fails to curb such a phenomenon, activists might be justified in fearing the erosion of immigrant-friendly precedent such as Graham. Yet, an erosion of this magnitude would require reflexive ac­ceptance of the state and local interests justifying subfederal alienage classifications. That is to say, courts would be required to find state dis­crimination on the basis of alienage no longer inherently suspect once the barrier of federal exclusivity is dissolved.

That courts would do so is far from sure. Even in the narrow set of cir­cumstances in which courts have traditionally afforded state alienage classifications rational basis review, they have done so circumspectly. The public interest doctrine, which allowed states to discriminate against non­citizens in the allocation of state resources, failed even to survive to the modern era. 157 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))). In 1948, the Supreme Court discarded the doctrine, find­ing sovereign ownership “inadequate to justify” a California law that pre­vented aliens from profiting off of state resources “while permitting all others to do so.” 158 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]”). The Court has similarly curtailed its public function exception. 159 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”). Grounded in states’ inherent power to define their political communities, 160 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))). the public function exception was used to uphold dis­criminatory state laws barring noncitizens from positions as public school teachers, 161 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”). probation officers, 162 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”). police officers, 163 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)). and political office­holders. 164 Sugarman, 413 U.S. at 647–48 (condoning citizenship requirement for state office where requirement is rationally related to legitimate state interest). Importantly, the doctrine lost much of its potency after Graham. 165 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”). In narrowing the doctrine post-Graham, the Supreme Court therefore in­dicated its willingness to trench on areas of previously unquestioned state prerogative. 166 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.”). It seems at least plausible that courts would do so again were subfederal regulation to spawn discriminatory state legislation. 167 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”). To the extent that noncitizens seek to enforce other constitutional guaran­tees, such as due process or reasonable search and seizure, the Supreme Court’s existing jurisprudence would likewise remain protective. 168 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].”). Fur­thermore, laws designed to drive noncitizens out of local communities could easily be construed as pure immigration law and, therefore, neces­sarily preempted as clear usurpations of federal authority. 169 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 im­migration 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)). These are but several of many ways in which courts could prevent the erosion by restrictionist subfederal regulators of immigrants’ constitutional entitlements.

Critics of immigration subfederalism also lament the “balkanization” of state law that will purportedly occur as a result of subfederal regula­tion. According to the balkanization thesis, “today’s multi-ethnic immi­grant gateway regions” will become “individual melting pots” while other regions will exhibit “a lower tolerance for the issues and concerns of eth­nically more diverse populations.” 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). But balkanization is already a politi­cal reality; it is what has prevented federal immigration reform to date, rendering panacean portrayals of federal exclusivity ironic at best. 171 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”). Fur­thermore, the notion that restrictionist states will necessarily persist in their restrictionism is a facile one. Anti-immigrant legislation entails significant costs for states, both in terms of labor and revenue. As these costs be­come apparent, states may opt to avoid such losses by repealing restric­tionist laws. 172 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”). Riverside, New Jersey, did just that after its legislation tar­geting unauthorized employment precipitated substantial economic loss. 173 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). Anti-immigrant legislators also run significant social and political risks. In response to SB 1070, for example, Arizona protestors “launched sophisti­cated boycott campaigns against the state, many of which [were] mod­eled after anti-apartheid efforts.” 174 Id. at 1712. And by revealing the statistical and conceptual fallacies upon which restrictionist legislation is frequently based, 175 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”). enacting such legislation may in fact do more to advance immi­grants’ rights than uniform federal policy. 176 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.”).

2. The How. — Proponents of immigration federalism pursue a lofty agenda. The integrationist movement seeks to reconstitutionalize subfed­eral immigration authority while also imbuing President Obama’s immi­gration policies with constitutional authority. Thus, by sheer force of po­litical will, integrationists hope to fortify against invalidation state and ex­ecutive acts that, insofar as they challenge the reigning articulation of separated powers, remain of debatable constitutionality. Integrationists must therefore demonstrate some semblance of constitutional imprima­tur justifying the reallocation of power necessary to legitimize their actions. Second, a translational mechanism capable of channeling states’ veiled constitutional demands up to federal decisionmakers must exist. 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.”). Doubts as to whether either requirement can be satisfied have caused scholars and commentators to question the durability of both President Obama’s deferred action policies and, more broadly, the constitutionality of sub­federal integrationism. These doubts seem more an expression of politi­cal fatalism than constitutional logic. Federalism scholars not only depict the contemporary political process as perfectly capable of, if not ideally suited to, channeling up regulatory preferences but also provide ample support for the constitutionality of negotiations regarding the ver­tical allocation of power between state and federal governments. 178 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://columbia
lawreview.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”).

Addressing first constitutional imprimatur, existing scholarship pro­vides ample support for state–federal negotiation regarding the alloca­tion of disputed constitutional authority. To many contemporary federal­ism scholars, vertical power negotiation is not a matter of constitutional permissibility, but rather one of constitutional necessity. 179 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.”). Where, as with immigration authority, the Constitution leaves the exact boundaries of vertical power sharing unclear, structural bargaining becomes inevita­ble. 180 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. Chief Justice John Marshall acknowledged as much in McCulloch v. Maryland, observing a constitution that “contain[s] an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolix­ity of a legal code, and could scarcely be embraced by the human mind.” 181 17 U.S. (4 Wheat.) 316, 407 (1819). Subfederal actors bargaining with the federal government over the proper allocation of immigration authority therefore do so with im­plicit constitutional sanction. Furthermore, the resulting political and social disagreements invigorate the democratic process, “knitting to­gether the national polity” in pursuit of consensus. 182 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”). Thus, rather than undermining constitutional values, subfederal immigration regulation represents a form of live constitutional interpretation, desirable for its ability to forge national compromise in the face of textual ambiguity. 183 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.”).

Given these ambiguities, and the consequent need for intergovern­mental bargaining, it is unsurprising that the contemporary political pro­cess includes mechanisms for channeling subfederal regulatory prefer­ences up to federal decisionmakers. Formal models of cooperative feder­alism, such as devolution and delegation, do so by explicitly deferring to the policy choices of subfederal actors within federalism’s “discretionary spaces.” 184 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”). Immigration federalism activates the same political channels and processes at work in devolutionary and delegatory schemes. 185 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.boston
fed.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).
It also triggers more traditional methods of vertical bargaining such as demo­cratic mobilization and persistent constituent demands on congressional representatives—the very pith of the political process. In the context of immigration federalism, mobilization and state–congressional communi­cation convey to Congress the array of conflicting subfederal priorities and policies with respect to the regulation of noncitizens. This exchange is crucial to the longevity of integrationist reforms. 186 See Kramer, supra note 103, at 1523 (1999) (“[P]olitical relationship[s] drive[] constitutional power and practice.”). The survival of sub­federal, pro-immigrant legislation requires Congress to forego its consid­erable powers of preemption by declining to legislate, something it is more inclined to do when a policy question lacks majority consensus. 187 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))). Vociferous yet inconsistent demands from subfederal actors regarding immigration policy thus make deference to local legislative preferences particularly attractive to federal lawmakers in that such deference mini­mizes political risk while maximizing political support. 188 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.”). Ultimately, these political mechanisms represent an opportunity for states to influ­ence the congressional response to immigration federalism. By entrench­ing policies at the local level, integrationists and immigrants’ rights advo­cates can demand deference to local policy and dig in against future re­strictionist preemption, thereby redefining the nature and scope of con­stitutional immigration power.

III. Federalism, Meet Youngstown‌ : Constitutionalizing Deferred Action

In debating the constitutionality of deferred action, scholars have struggled to locate President Obama’s executive policies within the tradi­tional tripartite framework of Youngstown Sheet & Tube Co. v. Sawyer. 189 343 U.S. 579 (1952). Scholars applying the framework have announced wildly different re­sults, 190 See infra notes 196–201 and accompanying text (sampling scholarly conclusions). and with good reason. The nebulous relationship between con­gressional and executive behavior set forth in Justice Jackson’s concur­rence impedes neat categorization. 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). Furthermore, the most intuitively apposite of the three zones, the “zone of twilight,” which weighs execu­tive action against congressional inaction, 192 See id. at 637 (Jackson, J., concurring) (specifying zone of twilight results from “congressional inertia, indifference or quiescence”). lacks precedential exposi­tion, making it difficult to apply. However, as this Part will demon­strate, the greatest obstacle to successfully placing DACA within the Youngstown frame­work is the framework itself. Modern immigration law implicates far more than the separation of power between the President and Congress; it also entails significant questions regarding the division of power between the federal government and the states. Yet, as it currently stands, the Youngstown framework is ill-equipped to consider questions of vertical power sharing, thereby eliminating significant variables from its constitutional calculus. In the context of immigration policy—and American federalism more generally—these variables matter. Any plausible assess­ment of DACA’s constitutionality must therefore take verticalism into account, especially given states’ intense participation in the national im­migration debate.

This Part explores the doctrinal relationship between vertical and hor­i­zontal separation of powers in American government and argues that, in evaluating the constitutionality of executive action within the traditional Youngstown framework, subfederal political power must be considered. Failure to do so exalts constitutional theory over political reality, perpet­uating a Youngstown out of step with contemporary government and of limited practical applicability. 193 See infra notes 215–218 and accompanying text (describing anachronism of for­mal separation-of-powers model). It also raises questions of doctrinal legiti­macy. A Youngstown devoid of federalism generates precedent that is at best doctrinaire and at worst obsolete. 194 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-of-powers 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”). Incorporating federalism into the Youngstown schema avoids these pitfalls by bringing within its theoreti­cal reach the full scope of modern intergovernmental power sharing. In this refurbished framework, subfederal power and prerogative function as a fourth “zone” capable of supplementing or undermining the legiti­macy of unilateral presidential policy.

The Youngstown schema centers on one key phrase in Justice Jackson’s concurring opinion: “Presidential powers are not fixed but fluctuate, de­pending on their disjunction or conjunction with those of Congress.” 195 Youngstown, 343 U.S. at 635 (Jackson, J., concurring). This phrase has become a cornerstone of separation-of-powers jurispru­dence, mediating the ambiguous divide between congressional and presi­dential power. Despite its renown, applying Justice Jackson’s tiered frame­work presents its own difficulties, no less when assessing the constitu­tionality of deferred action. In this regard, commentary remains frac­tured. Josh Blackman places DACA in zone three, finding it “incompati­ble with the expressed or implied will of Congress,” and an example of presidential power “at its lowest ebb.” 196 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 acting contrary to the will of Congress.” (citing Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 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.’”).
John Jones reached the same conclusion regarding DACA’s work-authorization provision, reasoning, “since Congress has specifically denied work authorization to illegal im­migrants, this facet of President Obama’s plan lands in the ‘lowest ebb’ zone of Justice Jackson’s framework.” 197 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). Others have found DACA uncon­stitutional based on similar logic though not explicitly invoking Youngstown. 198 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/S4V
8-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”).
In contrast, according to Lauren Gilbert, DACA “arguably falls within Justice Jackson’s twilight zone, which allows the President to act in cases of ‘congressional inertia, indifference or quiescence,’ particularly where Congress and the Executive enjoy concurrent authority.” 199 Gilbert, supra note 16, at 279 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). A nonfrivo­lous argument can also be made for zone one. DACA “should be deemed as foreign policy where the President has the sole authority to take ac­tion,” 200 Ho, supra note 196, at 368. writes Jou-Chi Ho, a position supported by the Supreme Court’s reasoning in United States ex rel. Knauff v. Shaughnessy. 201 338 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 immigra­tion context.” See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 480–82 & n.71 (2009). More recently, the D.C. Circuit concluded “Congress has acquiesced to, and even en­dorsed the use of, deferred action on removal of undocumented immi­grants by the executive branch on multiple occasions.” 202 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/up
loads/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”).

As these examples suggest, the conventional Youngstown framework will not necessarily yield satisfying answers with respect to the constitu­tionality of deferred action. This is not because Obamian immigration policy is of particularly dubious constitutionality. Rather, the difficulty of situating DACA within the Youngstown framework exposes a key limitation of the framework itself: its adherence to a stylized view of executive power that fails to account for the realities of power sharing within the American federalist system. This malady is not, to be fair, unique to Youngstown. Generally speaking, American constitutional precedent and scholarship adhere to classical, formalistic definitions of institutional power allocation. 203 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”). Consequently, executive, legislative, and subfederal power are often portrayed as mutually exclusive and federal interbranch bargaining as distinct from vertical power sharing. That courts and schol­ars reproduce this inflexibility in applying Youngstown is therefore unsur­prising. It nonetheless belies the reality that within our contemporary constitutional system, axes of vertical and horizontal power sharing inter­sect. 204 See, e.g., Bulman-Pozen, supra note 185, at 461 (acknowledging tendency to “over­look how federalism affects the separation of powers”). Expanding the Youngstown framework to reflect the prevalence of institutional bargaining achieves two goals. Regarding the focus of this Note, it enables a more nuanced analysis of DACA’s constitutionality, set­tling conflicting claims as to which of Jackson’s three zones applies. 205 See supra notes 196–202 and accompanying text (detailing claims). More broadly, it serves to reconcile judicial doctrine and constitutional reality.

Federalism has the capacity to resolve inconsistent applications of the Youngstown framework by providing concrete indicia of legitimacy in an otherwise unresolvable theoretical debate. Specifically, states’ substan­tive policy preferences serve as a pragmatic antidote to the inherently in­determinate conceptual boundary between congressional and executive power. This vertical approach “frees us from the standard battles about whether we really can define the legislative, the judicial, and the executive” and instead measures power as a function of political reality. 206 Victoria Nourse, The Vertical Separation of Powers, 49 Duke L.J. 749, 752 (1999). Federal­ism may factor into Youngstown in strong or weak form. At its strongest, it might represent a fourth “zone” equal in weight to those already estab­lished. Alternatively, it may appear in weaker form, as a “subconstitu­tional” 207 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). or “phantom” 208 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”). tiebreak. Either approach would factor state power into Youngstown’s calculus as a means of facilitating zonal categori­zation in cases implicating both the horizontal and vertical allocation of power. 209 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”). Where states favor an Executive’s proposed allocation (or real­location) of constitutional power, the President acts with greater constitu­tional imprimatur, suggesting zone one may be the most appropriate cat­egorization. Where states express mixed or no preference, zone two most naturally applies. In these instances, the President ought to receive “in­terpretive deference” 210 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”). as a matter of institutional competence 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”). and democratic principle. 212 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))). Finally, where states disfavor a President’s power play, zone three controls.

Applied to DACA, this approach places President Obama’s immigra­tion directives closer to zone one (constitutionality) than zone three (un­constitutionality). This result depends, however, on properly characteriz­ing the subfederal response. From a sociopolitical standpoint, one could classify the subfederal response to deferred action as mixed; states cer­tainly do not agree on the appropriate response to unauthorized immi­gration. They do, however, appear to agree on a strategy for navigating this lack of consensus. Both integrationist and restrictionist states have capitalized on the constitutional power struggle accompanying Obamian immigration reform, 213 See supra section I.A.2 (discussing states’ varied strategies for regulating immigrants). legislating within its shadow to entrench local policies and preferences. This state action reifies DACA’s constitutional­ity in several ways. First, by responding in kind, states shore up President Obama’s decision to buck the immigration power structure. Second, the states’ grab for power signals widespread, systemic instability in the allo­cation of constitutional immigration authority. With the boundaries of immigration power shifting vertically between the state and federal gov­ernments, a similar horizontal shift between executive and legislative ac­tors becomes far less suspect. Finally, the predominance of integrationist legislation at the subfederal level 214 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.
legitimizes the substantive policy choices underlying deferred action.

Expanding Youngstown represents a new and significant development in constitutional doctrine and, as such, requires justification. The tradi­tional, tripartite Youngstown model reflects a classical conception of sepa­ration of powers 215 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.”). premised on three functionally distinguishable de­partments. 216 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.”). This conception fails to capture modern American govern­ment, 217 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 . . . .”). in which state–federal relations exert a powerful influence on the federal interbranch power balance. 218 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). Through political exchanges with congressional representatives, subfederal actors communicate pref­erences regarding the scope of executive power and incentivize Congress to actuate those preferences. 219 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.”). As Professor Victoria Nourse explains, “Every shift in governmental function or task can be reconceived, not simply as a shift in tasks but also as a shift in the relative power of popular constituencies.” 220 Id. at 752. This dynamic is evident in recurring debates surround­ing the “imperial presidency,” 221 See generally Arthur M. Schlesinger, Jr., The Imperial Presidency (1973) (coining term “imperial presidency”). debates whose intensity fluctuates based on changes in political climate and partisan unity/disunity within the federal government. 222 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 extra-constitutional 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.”). Empirical research suggests, for example, that Congress is “less willing to delegate policymaking discretion to the execu­tive branch when the policy preferences of the two branches diverge.” 223 Levinson & Pildes, supra note 194, at 2341. Conversely, party politics can drive legislators to pursue “policy goals by conferring substantial authority on the executive branch.” 224 Bulman-Pozen, supra note 185, at 468. These obser­vations highlight the important role subfederal political preferences play in shaping the interbranch power balance. They also raise serious ques­tions as to whether the traditional Youngstown framework, insofar as it omits federalism, merits doctrinal and theoretical legitimacy.

No particular constitutional provision mandates accounting for state prerogatives in assessments of executive action. Apart from broad struc­tural considerations, incorporating federalism into the existing Youngstown schema has no clear constitutional hook. Yet this is true of Youngstown as a whole. Justice Jackson’s opinion is self-consciously premised on struc­tural, rather than textual or doctrinal, reasoning. 225 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.”). Justice Jackson him­self describes his concurrence as giving “the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical im­plications instead of the rigidity dictated by doctrinaire textualism.” 226 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J., concurring). He explicitly recognizes the potential for the reallocation of constitu­tional power over time, thereby impliedly conceding the ability of the tripartite model to account for such shifts. 227 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.”). Further, he openly acknowledges the political process as constitutive of executive power. 228 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.”). Notwithstanding its atextual provenance, the Youngstown framework has achieved landmark status and in doing so accorded structural considerations significant weight in executive-power jurisprudence. 229 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)). Updating Youngstown to re­flect the structural realities of vertical and horizontal power sharing—more specifically, the interaction between state and executive power—is therefore in keeping with Justice Jackson’s emphasis on “the imperatives of events and contemporary imponderables rather than on abstract theo­ries of law.” 230 Youngstown, 343 U.S. at 637 (Jackson, J., concurring).


Since its inception, President Obama’s deferred action policy has val­idated and improved the lives of millions of noncitizen residents. That these benefits might sunset with the Administration is therefore a matter of great concern to immigrants, immigrants’ rights activists, and their al­lies. In order to combat this loss of benefits, states and integrationists are making concerted efforts before President Obama leaves office to en­trench DACA’s policies and protections at the subfederal level. Despite the federal government’s traditional monopoly in regulating immigra­tion, subfederal entrenchment may well pay off. By energizing political processes and channeling local, bipartisan preferences for subfederal regulation up to Congress, states are poised to change the constitutional framework itself, demanding a reallocation of constitutional immigration authority in their favor. Such a restructuring of constitutional entitlements, once precluded by the plenary power doctrine, is now eminently possible as a result of the judiciary’s gradual weakening of plenary power’s strict mandates.

States’ focus on immigration federalism and their assumption of greater subfederal regulatory power also have a role to play in constitu­tionalizing President Obama’s executive reforms. On a basic level, states’ power demands reflect the unstable constitutional allocation of immigra­tion authority among constitutional actors, suggesting the traditional di­chotomy between legislative and executive immigration authority is open to contestation. The pace and volume of state efforts also raise questions about the adequacy of Youngstown’s tripartite framework. Consistent with its elision of federalism, Youngstown ignores the real-world interactions between executive and subfederal power. In doing so, it leads to inaccu­rate judicial determinations regarding the constitutionality of challenged executive actions and unquestionably betrays the flexible, pragmatic struc­tural approach urged by Justice Jackson. Injecting federalism into the Youngstown framework thus does more than merely resolve the deferred action dilemma. It also promises a more nuanced, holistic, and realistic approach to questions of interbranch and intergovernmental power sharing.