The kids are coming over the border but Congress still won’t be taking up immigration reform this year.
It’s disappointing if unsurprising. But advocates for reform have reason to hope. States and cities long have shaped the country’s immigration policy and can continue to do so.
Take New York. The New York city council recently made a splash by allocating $4.9 million to free legal assistance for non-citizens in deportation proceedings. It also created a municipal identification card available to everyone, regardless of immigration status.
In Albany, advocates introduced a bill that goes further, granting unauthorized immigrants in the state the right to vote and sit on juries. Although that measure is probably aspiration more than reality, it provides a counterpoint to the Arizona-style enforcement crackdowns.
Such immigration federalism necessarily will entail ideological battle between pro-enforcement and pro-integration strategies. But partisans on both sides should be willing to let states and localities take immigration policy in different directions.
State and local authority in this domain is limited, but it exists.
When it comes to enforcement, state and local police historically have played a role alongside the federal government. In 2012, the Supreme Court trimmed this role by striking down most of Arizona’s notorious Senate Bill 1070. But the court also left space open for local immigration policing. As the administration emphasized throughout the litigation, the federal government depends on cooperation from state and local police. Nothing in the court’s decision precludes Congress from authorizing greater state and local involvement.
And the court recognized police authority to inquire into immigration status, subject to civil rights constraints. States also have considerable authority to define the parameters of their own political communities, as well as significant freedom to use their resources to benefit immigrants, regardless of status.
Given these parameters, what should immigration federalism look like today?
On the enforcement end, where enthusiasm for enforcement remains, states should focus on combating racial profiling and curbing distrust of police in immigrant communities. This should be complemented by training for police in the details of immigration law and in how to interact with immigrant communities.
At the same time, some jurisdictions have rejected enforcement cooperation altogether. States such as California and Connecticut, and cities such as Chicago and Washington, D.C., actively resist federal requests for assistance. State and local ordinances constraining police cooperation continue to proliferate, especially as controversy over federal enforcement builds.Enforcement enthusiasts should acknowledge these moves as legitimate, too.
Critics might worry that this localized activity is creating an incoherent patchwork; no doubt the federal government prefers not to be challenged from both directions. But in reality, these mixed agendas offer examples of how state and local action can contribute to the national debate over immigration enforcement by highlighting what is at stake in concrete terms.
Like Arizona’s law, the anti-enforcement measures reflect a rejection of current federal policy and may well force the federal government to rethink its enforcement strategies. There is no “final” answer to the enforcement question — only an ongoing debate.
Today, numerous states and localities practice an affirmative integrative federalism. Republican and Democratic states alike make available in-state tuition to unauthorized college students. Municipal identification cards such as the one recently adopted in New York enable even unauthorized immigrants to open bank accounts, sign leases, get library cards and access other services.
State and local bureaucracies are also interested in and capable of implementing the immigration laws, and they could be enlisted productively not just in enforcement, but also in future legalization and integration programs, and even in the process of selecting and admitting immigrants. For example, the Republican governor of Michigan and Utah’s state legislature have floated the idea of recruiting immigrants to help revitalize local communities. Though this idea would require federal authorization and may prove to be misguided, it reflects the possibilities for reform that open up when we recognize states and localities as legitimate players, rather than label them as out of their league.
Immigration federalism will ultimately be a limited tool and cannot substitute for a federal policy. Only Congress (not the states, or even the president) can provide today’s unauthorized population with the ultimate security of legal status (or adopt direct means of restricting immigration). And in some cases a uniform immigration policy will be necessary.
But because the United States consists of overlapping political communities with varied views on immigration, federalism offers a framework for productive debate, as well as a set of institutional mechanisms for working toward compromise. When imagining a better system, we should take advantage of these alternative forms of lawmaking to channel the complexity of the immigration question, even if it means embracing contradictions.
Cristina Rodriguez is a professor at Yale Law School. This op-ed was adapted for The Washington Post from an article titled “Law and Borders” that was published in the summer 2014 issue of Democracy: A Journal of Ideas.