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.
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”
or “attrition through enforcement.”
In other states, pro-immigrant legislation facilitates an unprecedented degree of social integration, promising opportunity and bodily safety at the local level.
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.
In 2014, President Obama significantly expanded DACA’s scope, suspending the initial age cap and relaxing the original date-of-entry requirement.
Should these modifications go into effect,
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,
making nearly half of America’s unauthorized population eligible for work authorization and lawful presence.
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.
In contrast, opponents tend to decry the policy as foisting upon states unwanted economic and social burdens.
On the constitutional front, detractors classify deferred action as interbranch power mongering, an exercise in executive aggrandizement.
Legal analyses have reproduced this rift in popular opinion as academics set forth opposing accounts of DACA’s doctrinal legitimacy.
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.
For them, DACA’s legality is more than a topic of spirited debate. It represents promotion from an “underclass” “caste”
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.”
Similarly, Daniel Arellano argues, “[President Obama’s] policies are likely to have little lasting effect without further legislative action.”
Other scholars to consider the matter, whether directly or collaterally, tend to agree.
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.
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.
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.
Yet from a textual standpoint, the Constitution hardly demands federal exclusivity in immigration.
Despite its constitutional complexion, the plenary power doctrine is a jurisprudential myth, produced by grafting extratextual norms onto ambiguous constitutional language.
Perhaps because of this unconventional pedigree, the doctrine has proven unsteady. Scholars have chronicled plenary power’s slow, twentieth-century decline.
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.
Immigration laws differed significantly from one locality to the next as colonies pursued “widely varying policies” of admission, inhabitance, and exclusion.
These localist policies persisted with the Articles of Confederation,
under which the fledgling states retained full control over the laws of admission, exclusion, and naturalization applied within their borders.
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.”
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.
Thus, by crossing state lines, naturalized aliens might gain access to privileges greater than those available 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.
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.
It was legally incoherent and provided fodder for interstate conflict,
a prospect at odds with the central aim of the developing constitutional project.
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.
It would do so “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.”
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.
In practice, states continued virtually unabated in their regulation of immigrants for close to a century.
Several factors enabled states’ continued regulatory dominance. Declining to pass legislation of its own, the newly instituted Congress implicitly reaffirmed states’ immigration power.
To meet the new and diverse challenges of nineteenth-century immigration, states legislated to fill the void left by congressional inaction.
Furthermore, demand for settlers in America’s sparsely populated western territories weighed against and made impracticable uniform, restrictionist immigration policies.
Securing and developing the western frontier required productive bodies.
Thus, at the turn of the nineteenth century, “the main role for government in immigration was to encourage it.”
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.
Finally, and perhaps most importantly, the concept of naturalization was inextricably bound up in the unresolved debate over slavery.
While northern states considered freedpersons citizens,
the South deemed slaves property and resisted efforts to expand the definition of citizen beyond that of “free white person.”
Until 1856—the year the Supreme Court handed down its decision in Dred Scott
—establishing a uniform rule of naturalization would therefore have required Congress take a stance on slavery by announcing a clear definition of “citizen.”
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.
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,
but its 1889 decision in Chae Chan Ping v. United States placed the naturalization power entirely in the hands of Congress.
In no uncertain terms, Justice Field declared the power to regulate immigration a uniquely federal “incident of sovereignty.”
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.
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.”
Second, as a means of safeguarding federal exclusivity, the Court developed strict limits on the scope of judicial review in immigration cases.
Until the late twentieth century, federal appellate courts therefore “abjured any significant judicial role” in defining immigration policy,
deferring “almost completely to the decisions of the federal legislature and the executive branch.”
Consequently, the adjudication of aliens’ constitutional rights became an exercise in near-total deference to federal policy.
Finally, in necessitating “very strong versions of obstacle and field preemption,” the plenary power doctrine supplanted subfederal immigration laws.
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.”
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.”
Likely driven by these and similar concerns, the Court began narrowing the scope of plenary power in the mid-twentieth century.
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.
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.’”
While traditional plenary power rhetoric featured prominently in its opinion,
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.”
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.”
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.”
Validating states’ long time defense to federal exclusivity, Justice Stone deemed the Pennsylvania statute a permissible exercise of state police power.
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.
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.”
In contrast, Hines’s preemption framework preserved a role for the states in regulating noncitizens (albeit a small one).
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”
—and efforts to regulate the economic and social behavior of immigrants in civil society—what academics refer to as alienage law.
It is on the basis of this distinction that the Court officially welcomed states back into the regulatory fold.
Thus, in De Canas v. Bica, the Court dismissed the argument that “all state regulation of aliens [is] ipso facto regulation of immigration.”
“Standing alone,” the Court insisted, “the fact that aliens are the subject of a state statute does not render it a regulation of immigration.”
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.
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.”
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.
From 2008–2014, this flood of subfederal legislation produced 1,885 immigration laws.
An additional 288 proliferated in 2014,
and in the first six months of 2015 alone, states passed another 153 immigration-related laws.
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)
and Hazleton, Pennsylvania’s Illegal Immigration Relief Act,
directly implicate or appropriate federal law, thereby raising clear preemption concerns.
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.
This makes doubts as to their constitutionality “speculative and indirect”
—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.
In 2013, forty-three states and the District of Columbia adopted 438 immigration-related laws and resolutions,
with “few exceptions to the general pro-immigrant trend.”
In 2014, immigrant-friendly statutes continued to gain traction in statehouses across the country, and state lawmakers demonstrated a strong interest in integrationist policies.
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.
Among such measures were bills incentivizing the certification of bilingual teachers (Texas),
lowering barriers to in-state college tuition for undocumented students (Connecticut),
mandating safety skills training for undocumented agricultural workers (Washington),
extending access to driver’s licenses (Delaware, Hawaii),
requiring “qualified health care interpreters to ensure accurate and adequate health care for those with limited English proficiency” (Oregon),
and instituting a statewide director of immigrant integration (California).
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.
However, recent efforts have focused on nationalizing the integrationist agenda.
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.
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.”
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.
“The field has not experienced such a dramatic shift in power since the nineteenth century.”
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
and Arizona v. United States.
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,
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.
Despite the laws’ substantial similarity, the Court upheld the Arizona statute.
Statist rhetoric permeates the majority opinion. Responding to Justice Breyer’s objection that upholding LAWA marked a “departure from ‘one centralized enforcement scheme,’”
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.”
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.’”
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.
Dissenting separately, Justice Sotomayor noted that IRCA “displaced. . . myriad state laws,” intimating these laws legally governed prior to IRCA’s enactment.
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.
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.
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.”
Upholding Arizona’s foray into immigration regulation thus fell “well within the confines of the authority Congress chose to leave to the States.”
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,
to deny certiorari in City of Farmers Branch v. Villas at Parkside Partners,
and to deny rehearing in Brewer v. Arizona Dream Act Coalition.
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.
“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.”
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.
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.”
He used the same language to reference the precedential import of Hines v. Davidowitz.
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.”
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.”
Justice Thomas disavowed the propriety of the Court’s preemption analysis altogether, finding SB 1070 did not conflict with federal law
and lambasting the majority’s finding of preemption as based on “judicially divined legislative purposes.”
Justice Alito considered the majority opinion equally problematic. Finding SB 1070 emblematic of “state police powers,” he demanded clearer evidence of congressional preemptive intent.
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.”
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,
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.
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.
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.
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.
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.
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.
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.”
Critics also claim localism jeopardizes the observance and enforcement of immigrants’ constitutional rights in general, and equal protection in particular.
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.”
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.
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.
At least some skepticism is in order. Federal prerogative has and continues to justify the denial of noncitizens’ human and constitutional rights.
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
—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.”
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.
Conversely, courts have been able to skirt individual rights questions by deciding cases on preemption grounds.
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.
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.
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.
This of course assumes federal courts will not relax their scrutiny of state alienage classifications to reflect greater tolerance for subfederal immigration regulation.
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.
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.”
The Court has similarly curtailed its public function exception.
Grounded in states’ inherent power to define their political communities,
the public function exception was used to uphold discriminatory state laws barring noncitizens from positions as public school teachers,
and political officeholders.
Importantly, the doctrine lost much of its potency after Graham.
In narrowing the doctrine post-Graham, the Supreme Court therefore indicated its willingness to trench on areas of previously unquestioned state prerogative.
It seems at least plausible that courts would do so again were subfederal regulation to spawn discriminatory state legislation.
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.
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.
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.”
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.
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.
Riverside, New Jersey, did just that after its legislation targeting unauthorized employment precipitated substantial economic loss.
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.”
And by revealing the statistical and conceptual fallacies upon which restrictionist legislation is frequently based,
enacting such legislation may in fact do more to advance immigrants’ rights than uniform federal policy.
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.
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.
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.
Where, as with immigration authority, the Constitution leaves the exact boundaries of vertical power sharing unclear, structural bargaining becomes inevitable.
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.”
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.
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.
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.”
Immigration federalism activates the same political channels and processes at work in devolutionary and delegatory schemes.
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.
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.
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.
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.
Scholars applying the framework have announced wildly different results,
and with good reason. The nebulous relationship between congressional and executive behavior set forth in Justice Jackson’s concurrence impedes neat categorization.
Furthermore, the most intuitively apposite of the three zones, the “zone of twilight,” which weighs executive action against congressional inaction,
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.
It also raises questions of doctrinal legitimacy. A Youngstown devoid of federalism generates precedent that is at best doctrinaire and at worst obsolete.
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.”
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.”
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.”
Others have found DACA unconstitutional based on similar logic though not explicitly invoking Youngstown.
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.”
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,”
writes Jou-Chi Ho, a position supported by the Supreme Court’s reasoning in United States ex rel. Knauff v. Shaughnessy.
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.”
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.
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.
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.
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.
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”
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.
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”
as a matter of institutional competence
and democratic principle.
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,
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
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
premised on three functionally distinguishable departments.
This conception fails to capture modern American government,
in which state–federal relations exert a powerful influence on the federal interbranch power balance.
Through political exchanges with congressional representatives, subfederal actors communicate preferences regarding the scope of executive power and incentivize Congress to actuate those preferences.
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.”
This dynamic is evident in recurring debates surrounding the “imperial presidency,”
debates whose intensity fluctuates based on changes in political climate and partisan unity/disunity within the federal government.
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.”
Conversely, party politics can drive legislators to pursue “policy goals by conferring substantial authority on the executive branch.”
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.
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.”
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.
Further, he openly acknowledges the political process as constitutive of executive power.
Notwithstanding its atextual provenance, the Youngstown framework has achieved landmark status and in doing so accorded structural considerations significant weight in executive-power jurisprudence.
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.”
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.