Immigration Restriction in the States: Pushing the Boundaries of Federalism

Recent policy initiatives in several states have create an expanded immigration law enforcement role for state and local officials, unleashing a debate over preemption of federal authority that is now playing out in the courts. We explain the increasingly contested boundaries of federalism with regard to immigration policy by focusing on how a restrictionist policy coalition has pursued new methods to block unauthorized immigrants’ access to employment, housing, or public services at the state level. Four cases (Arizona, Texas, Florida, and North Carolina) illustrate our argument about the key role of two factors in advancing restrictionist policy innovations. First, restrictive policies reflect the success of a coalition of state and national actors who have placed immigration at the top of the policy agenda within state Republican parties, usually at the expense of business interests that favor facilitating access to unauthorized immigrant labor. Second, direct democracy has been crucial to the diffusion of restrictive policies, both by facilitating policy adoption and by providing policy models to be emulated even in states that lack ballot initiatives. Gary Reich (University of Kansas) and Jay Barth (Hendrix College) State Politics and Policy Conference Houston, Texas February 2012 Immigration Restriction in the States: Pushing the Boundaries of Federalism State and local government is now the central arena in immigration-related policymaking in the US—and the past year saw heightened conflict concerning the boundaries of state versus federal jurisdictional authority. The present controversy centers on laws enacted in Arizona, Utah, Indiana, Georgia, South Carolina, and Alabama that require state and local officials to investigate and report violations of federal immigration law while also creating criminal penalties for business and labor transactions involving unauthorized immigrants. Arizona, Alabama, and South Carolina’s new laws have elicited a challenge from the U.S. Justice Department, which argues that the new laws violate the federal government's preeminent authority to enforce immigration law. The more assertive law enforcement approach of recent state immigration laws, and the ensuing federal challenge, speak to several changes in the federal-state relationship with regard to immigration policymaking that have been developing over the past two decades. First, increased immigration policy activism by state government reflects the growth of immigrant populations in “new gateway” states (places such as North Carolina, Georgia, Alabama, Virginia, Nevada, Tennessee, Arkansas, Utah) that had little experience with immigration until about the 1990s. Second, the growth of unauthorized immigration in these states, and the failure of comprehensive immigration reform proposals at the federal level in 2006 and 2007 to address this issue, added an incentive for policy responses at the state and local level. Finally, the focus on a law enforcement approach to unauthorized immigration reflects an opening that the federal government offered to state and local governments : Section 287(g) of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) invited collaboration between federal and state authorities in policing immigration violations, blurring a