an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Federalism and local immigration policy: what happens when your Printz finally comes
The New York Times reports that New Haven, Connecticut has pursued a policy of welcoming immigrants whether they are legal or illegal:
The Police Department has adopted a sort of “don’t ask, don’t tell” policy regarding citizenship status. City Hall is sponsoring workshops to help illegal immigrants file federal income taxes. And this summer, New Haven plans to allow illegal immigrants to apply for municipal identification cards, in what immigration advocates describe as the first program of its type in the nation.
City officials and immigrant-rights advocates hope these and other initiatives will make immigrants feel more comfortable dealing with life’s bureaucratic necessities — and make them less wary of the police. Officials say the decisions are more pragmatic than ideological, even in this overwhelmingly liberal city of 125,000, where advocates estimate that 3,000 to 5,000 illegal immigrants live in Fair Haven, New Haven’s predominantly Latino neighborhood.
“It stems from a simple central fact that when you’ve got a lot of people living in one place, you have to have certain rules for stability,” Mr. DeStefano said. “You have this population that works hard and lives among us as neighbors; we ought to know who they are. The last thing you want is them not to talk to City Hall because they are afraid of us.”
New Haven’s welcoming policies have, in many ways, trickled down from larger cities like New York, Los Angeles and Houston, but stand in sharp contrast to the expanding crackdown on immigrants announced last week in Suffolk County on Long Island.
How can New Haven do this? The answer, in a word, is federalism, and the New Haven story is an interesting although unintended consequence of the 1997 decision in Printz v. United States, in which the Supreme Court held that the federal government could not commandeer state officials to enforce federal law. Immigration has traditionally been an exclusively federal concern. However, in the past decade the federal government has tired to coax the states into doing more and more immigration-related work. (For an introduction to some of the key issues, see this discussion by YLS prof. Michael Wishnie). This accelerated after 9-11, when the Justice Department reversed a long held position and announced that state and local law enforcement officials have inherent authority to enforce civil law violations of immigration law.
Even if that is the case, Printz holds that state and local law enforcement don't have to enforce these civil law violations, much less investigate them. The federal government is not powerless here; Printz suggests that the U.S. could pay state and local governments to enforce its immigration laws, or perhaps more correctly, it could threaten to withold related sets of federal funds if state and local officials did not comply. But it has not done so. As a result states and local governments can choose their approach to immigration enforcement depending on their perceived circumstances. Some municipalities are more than happy to make immigration enforcement a big issue and get the political capital that often flows from a tough stance on immigration. But other cities and towns, as the example of New Haven suggests, believe that adding immigration enforcement to their police officers' already overfull plates is counter-productive and likely to hinder the prevention of crime and the delivery of municipal services.
The New York Times story is yet another example of what I have called "ideological drift;" the changing political valence of certain ideas and policies as they are repeatedly introduced into new contexts. Many conservatives, for example, may have been delighted with the Printz decision when it originally came down, in part because it involved state officials who refused to enforce federal gun control laws. A decade later, they may be somewhat less delighted that state and local officials are using Printz to welcome illegal immigrants to their cities.
The State of Maine did that several years back. Gov Baldacci made quite the public announcement that state officials (police, etc...) were not to inquire about immigration status. The basic logic being that many functions of state could not be done without the trust of entire community, eg you don't want an illegal immigrant not to call in a fire because he's afraid of getting caught. Governor quietly rolled that order back later when threatened with loss of funds.
Does the early history of primarily state controls over migration, before 1875 (see, e.g., Neuman, The Lost Century of American Immigration Law, 93 Columbia L. Rev. 1893) have any relevance when considering the current resurgence of a more federalized approach to immigration? The tradition of immigration being an exclusively federal concern did not emerge with the Constitution but only later.
This is a good start for a new beginning for illegal immigrants to file federal income taxes and apply the identification cards. The government concern the increasing number population. The workshops are beneficial to both government and illegal immigrants.
________________ gianski New York Immigration Lawyer Marina Shepelsky, located in Brooklyn, assists clients from the New York metro area and across the United States in all immigration and naturalization matters http://www.e-us-visa.com