Tuesday, December 01, 2020

Presidential Immigration Federalism

Guest Blogger

For the Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020).

Pratheepan Gulasekaram
            In The President and Immigration Law, Adam Cox and Cristina Rodriguez provide a compelling historical and contemporary account of the centrality of the president to immigration law. My contribution to this symposium accepts the premise that the President is a co-principal in immigration lawmaking, and focuses instead on the relationship between that co-principal and the co-sovereigns in our federalist system. I argue that recent developments at the Supreme Court complicate the immigration federalism story the authors tell.
In Sidelining the States (Chapter 5), Cox and Rodriguez begin with the now well-established premise that states and localities are indispensable parts of immigration policymaking. Over the past few decades, federal laws and executive enforcement practices have so integrated states and localities into the enforcement system that a robust federal enforcement program likely is unachievable without them. Because critical aspects of the deportation scheme depend on subfederal participation, the executive must effectively manage and moderate those relationships to instantiate a unitary and coordinated enforcement vision.
Fundamentally, Cox and Rodriguez’s model of presidential interaction with states and localities assumes an integrated mode of federalism, in which the federal executive’s goals are served by maintaining connectedness with states and localities. Doing so permits the president to use a variety a legal and political tools to intervene in, and shape, the inevitable participation of subfederal governments. For example, in a connected model of immigration federalism, presidents are more likely to respond to subfederal resistance with negotiation, publicity campaigns, modifications to administrative programs, and financial incentives to cajole subfederal cooperation, rather than with direct or heavy-handed confrontation. 
This form of federalism also means that the executive might find ways to harness state and local enthusiasm for enforcement while dictating the terms and level at which states and localities might participate. A notable example is Secure Communities, an executive branch program which automatically forwards arrest information from local police to federal immigration authorities when local authorities access federal criminal databases. In this way, the federal executive leverages the immense informational and manpower advantages of local police departments, while limiting the discretion of local officers. Local officers, of course, still retain discretion over who to arrest, but the ultimate immigration enforcement decision remains solely in the hands of federal officials. In addition to co-opting state and local participation, Cox and Rodriguez note that a presidential administration may quash state enforcement-minded efforts that stray too far from the executive’s prerogatives. Showcased most prominently in Arizona v. United States (2012), presidential administrations have used litigation to curtail the excesses of enforcement-minded state policies.
In this account of immigration federalism, a president’s preferences matter a great deal. In Arizona, the Obama administration took the rare and unusual step of suing the state for its notorious immigration enforcement scheme, SB 1070, and thereby brought the heft of the federal government to bear against the state law. That influence was evident in the majority opinion, which invalidated part of the state law on the theory that it interfered with the president’s enforcement priorities. The operative concern for the Court was the executive’s immigration policy, and not Congress’ written code.
Arizona, however, was highly path-dependent. For example, a John McCain administration may not have sued his home state in 2010, given the GOP’s hard-right turn on immigration during the 2000s, and McCain’s own support for SB 1070 during his primary campaign. Undoubtedly, private plaintiffs and advocacy organizations would have (and did) sue the state, but the weight of the federal government pressing a supremacy claim would have been absent. Without the federal executive arguing that the state law undermined a federal agency’s prerogatives, a closely-divided Court may have been more willing to allow enforcement redundancy in immigration as it does in other regulatory areas.
More clearly, had SB 1070 been enacted during a Trump Presidency, the administration undoubtedly would have encouraged the state’s effort. One of President Trump’s first acts in office was to discard the enforcement memoranda implemented by the Obama administration (and relied upon by the Arizona majority). Trump unleashed agents to enforce immigration law maximally, unencumbered by the priority categories used by his predecessors. As his Acting ICE Director put it, “we’re going to enforce the laws on the books without apology.” Arizona’s SB 1070, which mirrored federal statutory definitions and would have funneled more individuals into the federal deportation machine, served that goal. Either as a function of legislative primacy alone, or as a function of executive support for legislative primacy in defining enforcement parameters, the Court may have been much more willing to protect the state’s authority to craft its own immigration policy.
The Supreme Court’s 2020 ruling in Kansas v. Garcia (post-dating Cox and Rodriguez’s study) turns these counterfactual suppositions about Arizona into doctrinal reality. Less than a decade after Arizona, the Kansas majority declined to preempt the state’s prosecution, under state fraud and identity-theft statutes, of noncitizens accused of using false identity information to procure employment. What Kansas and Arizona shared, however, was an interest in the federal executive’s preference for states’ involvement. Justice Alito’s majority opinion conspicuously notes that DOJ officials encouraged Kansas’ prosecutions and that the Solicitor General’s office supported the state’s position before the Supreme Court. The extent to which the outcome may have depended on the DOJ’s position was not lost on Justice Breyer. His dissent pointedly cited both the DOJ’s prior position in Arizona urging a broad preemptive scope for federal employer sanctions laws, and the DOJ’s amicus filing urging federal exclusivity over unauthorized employment in a 2016 Ninth Circuit case.
In some ways, the Court’s focus on the executive’s shifting position might strengthen Cox and Rodriguez’s presidential immigration federalism thesis. More complicating however, is the discussion in Kansas that might be read as abandoning completely those aspects of immigration federalism that depend on presidential prerogatives. Although Justice Alito’s opinion cited the DOJ’s support of Kansas’ prosecutions, his opinion also argues that the broad parameters of the immigration code should guide preemption jurisprudence. Alito expressly eschews presidential primacy (a position he also articulated in his partial dissent in Arizona), stating that the “possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption.” For hardline restrictionists, Kansas represents a victory for state enforcement independence and a welcome correction of Arizona’s refusal to allow enforcement redundancy in immigration. Alito is explicit on this point, noting that “from the beginning of our country, criminal law enforcement has been primarily a responsibility of the States, and that remains true today.”
At first blush, the Arizona counterfactuals and the Kansas result are unsurprising. As with other aspects of presidential immigration policymaking, much depends on the preferences of the particular chief executive. But, in contrast to other areas of immigration policymaking, presidential decisions to weigh-in, either for or against subfederal policies, produce doctrinal shifts that bind the federal government, states and localities, and courts well-beyond a particular presidency. The Secure Communities program can be rescinded, abandoned, or modified by a future administration. The next president, however, cannot undo Kansas.
In comparison to the integrated and connected model described by Cox and Rodriguez, some executive decisions—and resulting jurisprudence—nudge presidential immigration federalism further into a dual and independent sovereignty mode. Thus, the paradoxical result of President Trump’s support of Kansas’ prosecutions is to untether some forms of state immigration enforcement from federal executive influence. Especially in light of the federal government’s lackadaisical enforcement of employer sanctions laws, the ruling moves interested states from the periphery of immigration enforcement closer to its center, at least in the context of employment regulation. Far from “sidelining” the states, the Trump administration appears to have helped unbind them in ways that were jealously guarded by prior presidents.
Once freed, it is difficult to put the genie of state and local policymaking back in the bottle. The ties and deep connections that undergird Cox and Rodriguez federalism account are loosened, and the balance shifts towards a co-sovereign independent from presidential control. It is of course true that, at least in the short term, this potential diminution of presidential control may not mean much. It remains to be seen whether states actually will use their authority to prosecute noncitizens more rigorously. And, as with all immigration federalism matters, a partisan difference is likely to emerge, with only deeply red states choosing  to engage in Kansas-style prosecutions. Nevertheless, the ruling means that the Biden administration will not be able to maintain a monopoly on the regulation of noncitizens in the employment process, even if that is the President-elect’s preference. Only a future Congress with sufficient political will—and not a future President alone—can eliminate the possibility of state prosecutions for seeking unauthorized employment. Moreover, if such prosecutions become normalized in several states, future federal legislative disapproval may prove difficult. (As I have chronicled elsewhere, this potential for state policies to entrench a federal administrative action applies to integrative policies too, as was the case when the Obama administration’s implementation of DACA galvanized several complementary driver’s license, professional licensing, and educational access laws at the state level.)
Finally, Kansas may also call into question the asymmetry in outcomes that currently characterizes presidential immigration federalism. As Cox and Rodriguez note, the federal government’s ability to suppress state and local dissent on immigration policy is strongest when the administration prefers less enforcement than the states, and weakest when it prefers more enforcement than the state. The clearest example of this asymmetry is the potency of the sanctuary movement. In a system of integrated presidential immigration federalism, these forms of state and local non-cooperation and resistance are highly effective.
But more than simply being effective, the asymmetrical ability of states to resist presidential enforcement schemes is highly desirable because it serves an important moderating and disciplining function. Indeed, as long as Congress remains incapable or unwilling to constrain the president’s de facto authority by reducing the size of the unlawfully present population, state and local resistance remains the primary means of moderating executive power over the shadow population (to a lesser extent, private organizations and associations play can play this role too). Continuing federal legislative stasis while allowing states the same leeway to enhance immigration enforcement as they do to resist it, diminishes this check and balance. If the Supreme Court tacks closer to Justice Alito’s views in Kansas, the underlying asymmetry in immigration federalism weakens and the system shifts towards maximalist enforcement. If Kansas signals a return to legislative primacy in immigration federalism cases, perhaps the Court will be more likely to permit state independence in regulatory areas outside of employment, and more likely to view skeptically subfederal laws (like sanctuary policies) that hamper maximalist enforcement efforts by the executive.
This deeper dive into Arizona and Kansas is not to suggest that Cox and Rodriguez’s account is mistaken. Both accounts of presidential immigration federalism–the more integrated one they describe and the more independent one Kansas might portend–are perpetually in operation. Rather, my point is that the story of presidential immigration federalism may be more complex than their examples allow. Looking to the future, presidential immigration policymaking is likely to continue galvanizing oppositional or supportive state and local legislation. Some of those responses can be explained by the executive’s desire to centralize enforcement authority while accommodating the practical importance of periphery parts of the enforcement regime. Some, however, exist outside that dynamic in ways that cannot easily be centralized or controlled by a presidential administration.
Pratheepan Gulasekaram, Professor of Law, Santa Clara University. You can reach him by e-mail at pgulasekaram at

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