The Practical Power of State and Local Governments to Enforce Federal Immigration Laws

In recent years, political debate over illegal immigration has taken on a decidedly local flavor. State and local governments increasingly complain that the federally controlled immigration system is failing and that the burdens created by that failure are borne at the local level.l Rather than accepting those burdens, state and local governments recently sparked nationwide debate by demanding reform of federal immigration laws,2 payment of federal funds to reimburse states for social services' provided to illegal immigrants,4 and an increase in federal resources allocated to immigration enforcement.5 Several states bearing the largest immigration burdens even sued the federal government to compel federal enforcement of immigration laws and to recoup the costs of providing social services to illegal immigrants.6 This "chorus of complaints"s' has been extraordinarily successful in extracting federal concessions. The states not only secured federal financial aid to partially offset the cost of providing social services to illegal immigrants,8 but also motivated Congress and the President to substantially reform federal immigration laws9 and to vastly increase the federal resources dedicated to enforcing those laws. 10 Prominent among recent immigration reforms are provisions granting state and local governments greater authority to enforce federal immigration laws.ll Part I of this Comment examines state and local immigration enforcement authority in light of these recent reforms.12 This discussion examines the various options state and local governments have under the reforms to tailor their immigration enforcement activities to meet unique local needs. Part II discusses various social, political, legal and economic difficulties that state and local governments have encountered, or may encounter, in exercising their new authority over immigration. Part III concludes that state and local governments should welcome the recent reforms as both an opportunity to respond to local problems and as a model for developing cooperative, rather than coercive, law enforcement relationships between federal and local authorities. I. THE OPPORTUNITY TO ACT: STATE AND LOCAL POWER IN A FEDERALLY DOMINATED IMMIGRATION SYSTEM The fundamental principle of immigration law is that the federal government has "plenary" power to regulate immigration and naturalization.ls Because Congress has constitutional power to establish a "uniform Rule of Naturalization,"14 and because U.S. immigration policies have national impact both domestically and in "our relations with foreign powers,"ls the federal courts have repeatedly held that the power to regulate immigration is exclusively vested in the political branches of the federal government.16 The Supreme Court has stated that "[t]he authority to control immigration-to admit or exclude aliens-is vested solely in the Federal Government"1n and "[olver no conceivable subject is the legislative power of Congress more complete." 18 To implement its exclusive power, the federal government has enacted and extensively amended the Immigration and Nationality Act ("INA" or "Act").ls The INA establishes a set of rules for legal immigration and naturalization,20 provides a system for processing and deporting illegal immigrants,21 and specifies civil and criminal penalties for violation of its provisions.22 The Supreme Court has referred to the INA as a "comprehensive federal statutory scheme for regulation of immigration and naturalization."23 To enforce the INA, Congress created a national immigration bureaucracy-the Immigration and Naturalization Service ("INS").24 A. Federal Preemption of State and Local Efforts to Enforce Federal Law Because the power to control immigration is vested exclusively in the federal government, state and local authorities in areas with immigration problems are in a potentially difficult position. While these local authorities may face political and budgetary pressure to enforce immigration laws, federal preemption stands as a possible roadblock to any state or local25 immigration enforcement effort. …