Immigration Federalism as Ideology: Lessons from the States
Abstract
:1. Introduction
2. The Instrumental and Expressive Faces of Immigration Federalism
3. Immigration and Federalism in the Courts
States, Immigration and Consolidation of a National Regime
The demand for immigrants was most widespread and intense outside the densely populated states of the Northeast; in the West and South, virtually every state appointed agents or boards of immigration to lure new settlers from overseas. Michigan began the practice in 1845. By the end of the Civil War the northwestern states were competing with each other for Europeans to people their vacant lands and develop their economies. The South joined in, hoping to divert part of the current in its direction in order to restore shattered commonwealths and replace emancipated Negroes. In the 1860’s and 1870’s, at least twenty-five out of thirty-eight states took official action to promote immigration. South Carolina, in its desperation, added the inducement of a five-year tax exemption on all real estate bought by immigrants.([45], pp. 17–18)
Though it be conceded that there is a class of legislation which may affect commerce, both with foreign nations and between the states, in regard to which the laws of the states may be valid in the absence of action under the authority of Congress on the same subjects, this can have no reference to matters which are in their nature national or which admit of a uniform system or plan of regulation.([47], p. 260)
…a statute…framed, to place in the hands of a single man the power to prevent entirely vessels engaged in a foreign trade, say with China, from carrying passengers, or to compel them to submit to systematic extortion of the grossest kind.([48], p. 278)
4. Immigration Federalism in the Contemporary Era
4.1. State Lawmaking: An Overview
Policy Areas | Bill Totals by Area | Percent Resolutions |
---|---|---|
Celebrate state’s immigrant heritage | 365 | 98% (357) |
Border control & “comprehensive reform” | 32 | 88% (28) |
Private bills, etc. | 372 | 85% (315) |
Legal services for immigrants | 30 | 63% (19) |
Education | 161 | 13% (21) |
Employment | 200 | 13% (25) |
Law enforcement | 225 | 11% (24) |
Omnibus bills | 19 | 11% (2) |
Human trafficking | 97 | 10% (10) |
Health & health care | 121 | 10% (12) |
Public benefits | 137 | 9% (13) |
Voting and elections | 32 | 9% (3) |
ID/Driver’s licenses, other licenses | 299 | 7% (20) |
State budgets/appropriations relating to immigration or related agencies | 167 | 1% (2) |
Policy Area | No. Laws | |
---|---|---|
1. | ID/driver’s licenses/other licenses | 279 |
2. | Law enforcement | 201 |
3. | Employment | 175 |
4. | State budgets/appropriations relating to immigration or related agencies | 165 |
5. | Education | 140 |
6. | Public benefits | 124 |
7. | Health & health care | 109 |
8. | Human trafficking | 87 |
9. | Private bills, etc. | 57 |
10. | Voting and elections | 29 |
11. | Omnibus bills | 17 |
12. | Legal services/assistance | 11 |
13. | Celebrate state’s immigrant heritage | 8 |
14. | Border control | 4 |
Total Laws | 1406 |
4.1.1. Identification and Licensing
ID/Driver’s License Bills | Other State License Bills | ||
---|---|---|---|
Allows ID/ Driver’s irrespective of immigration status | 8 | Professional Licensing | 63 |
ID theft/fraud | 16 | Other Requirements (fees, expiration dates) | 49 |
Anti-REAL ID | 28 | Gun permits/licensing | 34 |
Regulations Consistent with REAL ID | 51 | Regulatory Business/Operating | 32 |
Recreational licensing (hunting, fishing, etc.) | 16 | ||
Birth certificates (overseas adoptions) | 3 | ||
Subtotal | 103 | Subtotal | 197 |
4.1.2. Law Enforcement
Type of Immigration Enforcement Law | 2006 | 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | 2013 |
---|---|---|---|---|---|---|---|---|
| NJ | AZ (2) * MI, NY, TN (2) | MS | AZ (2) | AZ | SC | ||
| GA **, OH, IL (2), VA | AZ (2) AZ CO | AL, GA, IL, VA | CA, LA,SC | AZ (3), CA (2, 1 vetoed), CO, TX | DE | OK | |
| OH | NY, IL, TX | NC | AR, NH, OK | AZ | WA | DC, IL, PA | |
| GA, OH | NC | GA, VA | AZ, LA, OK | ||||
| CO, GA, OH | OK, TN | CO | CA (vetoed) TN, UT | GA, VA | AZ, MN (vetoed) TX, VA | AL | |
| GA | AZ, OK | MT (vetoed) | IN | ||||
| CO, SD | ME, OK, TN | CA, HI, UT, TN, CA | IA, TN, UT, AL | AL, CT, UT, MD, TN, KS | CA, ND, CT, UT, MI, MS, NM, OK, SD | KS, ME, UT | CO, MI, NM, |
| PA | DE, FL, LA | ||||||
| OK | TX |
4.1.3. Employment Laws
Type of Employment Law | 2006 | 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | 2013 |
---|---|---|---|---|---|---|---|---|
1. Mandates BasicPilot/e-Verify…* | CO, PA, TN, GA | AZ, GA, IA, MI, TN, CO, GA, OKT, PA | CO, ID, AZ MS, AZ, SC * UT | GA, UT, VA | LA, TN, VA (2) | LA, PA, WV | GA, MO | |
2. Verification of work eligibility (without mandate for Basic Pilot/E-Verify)… | TX, HI, IA, WV | VA (3), TN, WV | IL, UT | FL, NE (2) | NC | |||
3. Workplace regulation, employment taxes, civil rights protections… | ID, WA, GA | AR, AZ, GA, IL | AZ, CO, FL | CA, IA, SC, VA, WA | CA, UT, VA | CT, CA | ||
4. Proof of legal status required to collect unemployment insurance or workman’s compensation.... | ID, KS, WA | HI, CO, IL, KS, LA, MN, MS, MT, NM, OR, UT, ME | AK | |||||
5. Penalties for employer violations of state eligibility laws… | LA, GA,CO | AZ, TN, WV, OKb | AZ, CO, MD, MO, MS, VA | HI, TN | HI, KS, ME, WV, WI | LA | MA, VA, TN | |
6. Penalties for immigrants falsifying work eligibility… | TN (2) | ID | NH | |||||
7. Restricts unemployment and/or workman’s comp, job training based on legal status... | MN, IA, IL | MS, NE, OK | MI, MIS, MO, NJ (vetoed), OR, UT, WA | AL | TN | |||
8. State limits or bans employer participation in BasicPilot/ E-Verify | IL (Ban) | CA (Bans unless federal funding at stake) |
4.1.4. Other Policy Areas
4.2. Immigration Federalism 2006–2013: A Reassessment
4.2.1. Higher Education Access for Undocumented Immigrants
4.2.2. Driver’s Licenses and State-Issued Personal Identifiers
5. Discussion
“The bill I’m about to sign into law—Senate Bill 1070—represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix the crisis caused by illegal immigration and Arizona’s porous border”.—Arizona Governor Jan Brewer, 2010 [67]
“When a million people without their documents drive legally and with respect in the state of California, the rest of this country will have to stand up and take notice”.—California Governor Jerry Brown, 2013 [68]
6. Conclusions
Conflicts of Interest
References and Notes
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- 1LULAC v. Wilson 1997.
- 2Omnibus bills package separate (and sometimes unrelated) measures into one bill which is then brought up in a legislature for a simple “yes” or “no” vote. In this case, state omnibus bills would combine immigration-related topics such as immigration law enforcement, employment eligibility enforcement, anti-human trafficking and appropriations to various agencies including those providing immigrant services.
- 4Justice Miller rejected the revenue-raising rationale behind the since the money was not used specifically for immigrant care.
- 5In Hines v. Davidowitz (1941), Pennsylvania’s Alien Registration Act of 1939 preceded Congress’s passage of the Alien Registration Act of 1940. The Pennsylvania Law was enjoined by 3 district judges who claimed the state law both infringed on congressional powers and also denied equal protection to aliens under section 16 of the Civil Rights Act of 1870. The Supreme Court concurred, with Justice Hugo Black arguing that implementation of the Pennsylvania law would create an obstacle to congressional objectives [56].
- 6Human trafficking laws appeared 97 times, and the content of these bills typically brought aspects of state law enforcement in concert with the national Victims of Trafficking and Violence Protection Act of 2000, which aims to combat trafficking and shield victims and witnesses from prosecution.
- 7Voting rights are protected by federal legislation (the Voting Rights Act of 1965 and its extensions and renewals through 2007) and enforced via the Justice Department. Although states are in charge of redistricting for purposes of congressional reapportionment, when a state’s electoral maps are criticized for impinging on voting rights, these can land in the Justice Department or even the federal court.
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Newton, L. Immigration Federalism as Ideology: Lessons from the States. Laws 2015, 4, 729-754. https://doi.org/10.3390/laws4040729
Newton L. Immigration Federalism as Ideology: Lessons from the States. Laws. 2015; 4(4):729-754. https://doi.org/10.3390/laws4040729
Chicago/Turabian StyleNewton, Lina. 2015. "Immigration Federalism as Ideology: Lessons from the States" Laws 4, no. 4: 729-754. https://doi.org/10.3390/laws4040729