Can State Immigration Laws Ever Mirror Federal Immigration Policy?

JURIST Guest Columnist Victor Romero of Penn State's Dickinson School of Law says the current U.S. immigration system is broken. Many states have created their own immigration laws, purportedly in accordance with federal policy, but these state laws cannot possibly capture the nuances of the federal system. If states create their own regimes, we may end up with a more complicated system than we have currently...
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Regardless of one's political leanings, there is one thing upon which most agree: The current U.S. immigration system is broken. Given Congress's failure to fix the problem, what's a frustrated state or city to do? Although the federal government grants noncitizens permission to reside in the United States, the states and municipalities more directly feel the impact of their presence, because - just like U.S. citizens - noncitizens shape their communities economically, politically, and culturally, simply by living and working there.

Unsurprisingly, states and localities have increasingly sought to address immigrant issues to both fill the gap and prompt federal action. The National Conference of State Legislatures reports that the number of state laws and resolutions increased almost nine-fold from 39 in 2005 to 346 in 2010.

Given the high profile enjoyed by Arizona's controversial criminal trespass law [pdf], many in the public assume that state and local government laws are uniformly anti-immigrant. While it is true that many of these initiatives are aimed at curbing irregular migration by limiting access to employment, driver's licenses, and public benefits, many resolutions celebrate America's ethnic diversity, supporting efforts to integrate new immigrants and refugees.

Perhaps predictably, the split appears to be along "legal"/"illegal" lines: State resolutions welcoming migrants extend only to those who are here legally (immigrants and refugees), while laws that retract that welcome mat do so for those who are not here legally (undocumented and irregular migrants). Put another way, states and localities do not wish to create their own immigration regimes. They simply wish to supplement the national government's efforts. If federal immigration officials welcome a noncitizen, so should the states; in contrast, those denied entry or who have overstayed their visas should be encouraged to leave.

Unfortunately, it's not easy to separate the "legal" from "illegal" under current federal law.

While it is true that Congress tends to distinguish between those who are lawfully present and those who are not, our complex immigration regime allows for exceptions and waivers, where individual cases demand it. For instance, overstaying a visa will not separate a single mother from her four U.S. citizen children where she can prove her deportation will cause exceptional and extreme hardship to them. Similarly, Congress will occasionally issue a private bill to negate a deportee's removal, if it deems the person worthy of such legislative grace. Finally, victims of domestic violence at the hands of their U.S. citizen spouses will not be deported, but instead allowed to self-petition to correct their status and move on with their lives.

Thus, while these state laws purport to rely on existing federal immigration laws, they cannot possibly capture the nuance and complexity of such laws, especially as applied to individual cases. A state trespass law based on one's federal undocumented status may well end up complicating matters rather than simplifying them, given state officers' unfamiliarity with immigration law. And if every state passes a slightly different trespass law, with different state law enforcement officers struggling to enforce it fairly, we may find ourselves in an even more complicated situation than we have currently.

A critic might argue that denying states a role in immigration control devalues federalism. State governments have inherent authority to regulate traditional areas of local concern for the health, safety, and welfare of their communities. This means protecting state citizens from foreign nationals who have no right to be here, especially as the latter affect the local economy. But even assuming one could easily distinguish local problems from national ones in our increasingly global marketplace, to the extent the impetus for local action is the impact of foreign citizens, then the federal government's interest in protecting U.S. citizens may well parallel state concerns.

A second argument claims that to let undocumented persons roam free is to undermine the rule of law. Whether unauthorized border crossers or visa over stayers, the undocumented have no right to be here; their very presence makes a mockery of the legal system and unfairly disadvantages those who wait patiently in line. While it appeals to principle, this critique fails to persuade when viewed from the ground. First, when invoked in the context of irregular migration, this "rule of law" argument neglects the reality of selective law enforcement and citizen obedience. No recent President has argued that, given our scarce law enforcement resources, all deportable noncitizens should be deported. Prosecutorial discretion has dictated channeling resources toward those who are serious threats to the country through their criminal or subversive behavior. This argument also rings hollow given the citizenry's selective approach to law obeisance. Some of those who invoke the rule of law find little difficulty driving past the legal speed limit, jaywalking in a major city, or littering on a public highway.

Finally, and fundamentally, the invocation of the rule of law should prompt us to ask the question whether the underlying law we are being asked to follow is a good one. Is the line that we've drawn between "lawful" and "unlawful" migration sound? When dealing with the undocumented, would it be better to remove or encourage attrition through self-deportation, or to find more avenues for the vast majority of them to come out of the shadows and be counted? And to prevent undocumented migration, would it be better to punish transgressors with ever increasing sanctions, or to develop more legal avenues for short-term migration, with the possibility of permanent residence? These are exactly the hard questions we should be asking ourselves when confronted with the naked invocation of the rule of law.

Victor Romero is the Maureen B. Cavanaugh Distinguished Faculty Scholar and Professor of Law at Penn State. Professor Romero teaches and writes in the area of immigrant and minority rights.

Suggested citation: Victor Romero, Can State Immigration Laws Ever Mirror Federal Immigration Policy?, JURIST - Forum, Mar. 22, 2011, http://jurist.org/forum/2011/03/can-state-immigration-laws-ever-mirror-federal-immigration-policy.php.

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