February 2008 Vol. 106 No. 4 THE REVIEW

The Significance of the Local in Immigration Regulation

Cristina M. Rodríguez

The proliferation of state and local regulation designed to control immigrant movement generated considerable media attention and high-profile lawsuits in 2006 and 2007. Proponents and opponents of these measures share one basic assumption, with deep roots in constitutional doctrine and political rhetoric: immigration control is the exclusive responsibility of the federal government. Because of the persistence of this assumption, assessments of this important trend have failed to explain why state and local measures are arising in large numbers, and why the regulatory uniformity both sides claim to seek is neither achievable nor desirable.

I argue that the time has come to devise a modus vivendi regarding participation by all levels of government in the management of migration. To do so, I provide a functional account of subfederal immigration regulation and demonstrate how the federal-state-local dynamic operates as an integrated system to manage contemporary immigration. The primary function of states and localities is to integrate immigrants into the body politic and thus to bring the country to terms with demographic change. This process cannot be managed by a single sovereign, and it sometimes depends on states and localities adopting positions in tension with federal policy.

Given these dynamics, I offer a reformulation of existing federalism presumptions in the immigration context. These will not be primarily for application by courts, though courts should abandon constitutional or strong field and obstacle preemption theories in immigration cases. Instead, I offer a framework for federal and state lawmakers intended to restrain their impulses to preempt legislation by lower levels of government and to create incentives for cooperative ventures in immigration regulation.

Counterintuitively, the changes wrought by international economic integration demand strong institutions beneath the national level. Immigration highlights this convergence of the transnational and the local. Only by assimilating our understandings of immigration federalism to this realization can we explain and harness the value of state and local regulation.

   //  VIEW PDF
& Other Current Events

Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems

Across the country, underresourced indigent-defense systems create delays in taking cases to trial...

A Blended Approach to Reducing the Costs of Shareholder Litigation

Multiforum litigation and federal securities law class actions impose heavy costs on corporations and...

The Scope of Precedent

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales...

Reinventing Copyright and Patent

Intellectual property systems all over the world are modeled on a one-size-fits-all principle. However...

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...
MAILING LIST
Sign Up to Join Our Mailing List