Law Commons^™

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

Laboratories Of Exclusion: Medicaid, Federalism & Immigrants, Medha D. Makhlouf

Faculty Scholarly Works

Medicaid’s cooperative federalism structure gives states significant discretion to include or exclude various categories of immigrants. This has created extreme geographic variability in immigrants’ access to health coverage. This Article describes federalism’s role in influencing state policies on immigrant eligibility for Medicaid and its implications for national health policy. Although there are disagreements over the extent to which public funds should be used to subsidize immigrant health coverage, this Article reveals that decentralized policymaking on immigrant access to Medicaid has weakened national health policy. It has failed to incentivize the type of state policy experimentation and replication that justifies federalism …

Cooperative Federalism And Sijs, Shani M. King, Nicole Silvestri Hall

UF Law Faculty Publications

Recognizing the plight of young immigrants who have suffered abuse, neglect, or abandonment, and cannot be reunited with a parent, Congress has accorded those who qualify Special Immigrant Juvenile Status (SIJS). SIJS has created an expedited path for them to permanent residency and, ultimately, citizenship. The statutory scheme Congress crafted is unusual in that it requires each applicant to obtain a state court order finding that they meet the requirements for SIJS before the United States Citizenship and Immigration Service decides whether to confer that status on them. The implementation of this scheme has been fraught with difficulty, representing for …

Subfederal Immigration Regulation And The Trump Effect, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The restrictive changes made by the Trump presidency on U.S. immigration policy have been widely reported: the significant increases in both interior and border enforcement, the travel ban prohibiting immigration from majority-Muslim countries, and the termination of the DACA program. Beyond the traditional levers of federal immigration control, this administration has also moved aggressively to harness the enforcement power of local and state police to increase interior immigration enforcement. To that end, the administration has employed both voluntary measures (like signing 287(g) agreements deputizing local police to enforce immigration laws) and involuntary measures (threatening to defund jurisdictions with so-called “sanctuary” …

Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This commentary interrogates the concept of immigration federalism, examining the political and ideological contours of state and local sanctuary laws in the context of both state and the Trump Administration's exclusionary policies. I utilize the intrastate federalism conflicts within the State of Tennessee to highlight the political dynamics that govern the passing of state and local sanctuary laws analyzing new issues that have surfaced under the Trump Administration. In this context, the commentary argues that recent immigration federalism standoffs center around political divisions which fail to engage in principled evaluations of which level of governmentfederal, state, or local--should be the …

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade

Scholarly Works

Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote …

The Immigration-Welfare Nexus In A New Era?, Andrew Hammond

UF Law Faculty Publications

The Trump Administration’s immigration policy is one of the most hotly contested areas of American law. However, few have explored the Administration’s interest in using the obscure doctrine of public charge to further its agenda. Public charge determinations allow immigration authorities to prevent individuals from entering the country as well as deport immigrants who use public benefits. What’s more, individuals who sponsor family members to enter the United States are liable to pay the federal government back for any public benefits the sponsored family member uses once in the United States. A leaked draft Executive Order and proposed regulations suggest …

Trump, Federalism And The Punishment Of Sanctuary Cities, John M. Greabe

Law Faculty Scholarship

[Excerpt] “Historically, liberals have tended to hold more expansive under­standings of the scope of federal power. Conservatives, on the other hand, have tended to embrace stronger theories of federalism -- the term we use to describe the reservation of government power to state and local governments under the Constitution.”

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

All Faculty Scholarship

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

Independence And Immigration, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Scholarship@WashULaw

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit …

Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen

Publications

What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …

The States Of Immigration, Rick Su

Journal Articles

Immigration is a national issue and a federal responsibility — so why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that are likely to be enjoined or struck down by courts? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state …

Papers, Please: Does The Constitution Permit The States A Role In Immigration Enforcement?, John C. Eastman

Law Faculty Articles and Research

No abstract provided.

Rebellious State Crimmigration Enforcement And The Foreign Affairs Power, Mary Fan

Articles

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration ("crimmigration'), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of "cooperative federalism" that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting …

Police Discretion And Local Immigration Policymaking, Rick Su

Journal Articles

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …

The Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This paper addresses current immigration issues across the country, specifically in Arkansas, and how lawyers can seek to achieve social justice for immigrants. There currently has been a lot of activity and discussion surrounding state and local laws targeting immigrants. Central to this discussion has been whether states and localities are constitutionally permitted to enact immigration laws and whether state and local actions upset the current immigration system and how, if at all, their actions affect documented and undocumented immigrants' rights. When states and localities pass immigration related laws, the main concern is whether federal, state or local governments are …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

Although the federal government is traditionally understood to enjoy exclusive authority over immigration, states and localities are increasingly asserting a role in this field. This development has sparked vigorous debate on the propriety of such involvement, but the debate is predicated on a misunderstanding of the nature of federal exclusivity. Challenging the conventional wisdom that the Constitution precludes a meaningful role for state and local involvement in immigration.

This Article argues that the Constitution allows immigration authority to be shared among levels of government. After establishing the correctness of this view of immigration authority, this Article argues that the constitutionality …

Notes On The Multiple Facets Of Immigration Federalism, Rick Su

Journal Articles

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and …

Welcome To Hazelton - Illegal Immigrants Beware, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

On July 13, 2006, the city of Hazleton made national news as the first municipality in the country to pass ordinances against illegal immigrants. The majority of municipal legislation that passed regulated the employment of undocumented workers. The ordinances resulted from municipal perceptions that the federal government has failed to enact and enforce comprehensive immigration legislation. Thereafter, several states and municipalities across the country passed ordinances against illegal immigration. Since then, the federal courts have been inundated with lawsuits challenging the validity of municipal ordinances.

This article delves into the profound impact that municipal ordinances that sanction businesses for employing …

Power Of Governor-General To Expel Resident Aliens From Insular Territory Of The United States, Horace Lafayette Wilgus

Articles

In the case of Forbes et al. v. Chuoco Tiaco, decided by the Supreme Court of the Philippine Islands July 30, 1910, 8 Off. Gaz., p. 1778, some of the most interesting, important, and fundamental questions were presented and determined for the time being, but not settled, it is reasonably safe to say until passed upon by the Supreme Court of the United States. The questions involved were whether the Governor General of the Philippine Islands has the power to expel resident Chinese aliens without a hearing or an opportunity to be heard, and whether the Governor, if he exceeded …