Thursday, February 23, 2012
Mary D. Fan (University of Washington - School of Law) has posted Rebellious State Crimmigration Enforcement and the Foreign Affairs Power (Washington University Law Review, Vol. 89, 2012) on SSRN. Here is the abstract:
The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards defining unlawful alienage and immigration-related criminalization but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of “cooperative federalism” that does not trespass upon the federal power over foreign affairs, foreign commerce and nationality rules since the laws mirror federal standards. This article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting foreign affairs complications render the new spate of immigration policing laws infirm. The article argues for the need to give due weight to statements of interest by the executive on the foreign affairs implications of rebellious state crimmigration enforcement.
The article contends that the caste-carving approach of the multi-front “attrition through enforcement” attack strategy behind the laws contravenes national immigration enforcement policy and strains foreign relations. The analysis provides a basis for distinguishing the Supreme Court’s recent decision in Chamber of Commerce v. Whiting upholding the Legal Arizona Workers Act from the current spate of legislation pending in the courts. The analysis in the crimmigration context also enriches our understanding of what cooperative -- and uncooperative -- federalism enforcement means and the dangers of the phenomenon in areas of special national concern fraught with localized animosity.