Imagining a More Humane Immigration Policy in the Age of Obama: The Use of Plenary Power to Halt the State Balkanization of Immigration Regulation

This Article argues for the reassertion of Congress’ plenary power to regulate immigration, and examines the possibilities for radical change in immigration policy that are presented to us as we close out the first decade of the twenty-first century and begin looking toward the next. Part I provides an overview of the rise of state and local anti-immigrant laws in the wake of Congress’ failure to pass comprehensive immigration reform - as well as examining how Latinos and immigrants’ rights advocates have worked to combat these measures through litigation and other means - and the concurrent anti-immigrant sentiment that has gained momentum across the United States in recent years. Part II discusses how the Bush Administration undermined the principles of immigration federalism by combining enforcement-only immigration policies at the federal level with the improper delegation of other aspects of immigration control to states and localities- in particular the increasing reliance on the 287(g) program - and how the federal government’s reliance on these policies have not only undermined federal supremacy to regulate immigration, but has given rise to racial profiling and an increase in hate crimes toward immigrants and Latinos. Part III discusses Congress’ plenary power to regulate immigration, and argues that the political branches must act now to reinforce the principle of immigration federalism as a matter of both law and policy. I argue that because the Constitution requires the federal government to maintain a uniform system of immigration laws, Congress must act now and enact truly comprehensive immigration reform that clearly and forcefully sets limits on the ability of state and local governments to regulate immigration. In particular, Congress and the Executive have the power and the ability – and indeed, the obligation - to step in and halt the piecemeal enforcement of immigration on the state and federal level, thus putting an end to the “balkanization” of immigration law that has occurred at a rapid and frightening pace over the last several years. Additionally, by asserting the powers given to Congress and the Executive to create and enforce our nation’s immigration regulations, the Obama Administration also has the opportunity to stem the tide of anti-immigrant and anti-Latino rhetoric by implementing policies and practices at the federal level. Finally, Part IV discusses how Congress and the Obama Administration can use immigration federalism in a meaningful way to advance the civil and human rights of immigrants and citizens alike. I imagine what our nation would look like if our immigration laws embodied a respect for human dignity regardless of immigration status, and suggest that Congress should not merely amend the Immigration and Nationality Act (INA), but that the time is ripe for a complete reinvention of American immigration law and policy. Drawing from international law – specifically, the European Union concept of “freedom of movement” - I offer suggestions to Congress and the Executive regarding the moral and ethical dimensions that should be taken into consideration in the exercise of their plenary power to regulate immigration, and posit that comprehensive immigration reform in the Obama Administration should reflect global, rather than local, concerns surrounding immigration and migration in the twenty-first century.