Friday, June 8, 2012

Immigration Article of the Day: Reverse-Commandeering by Margaret Hu

Reverse-Commandeering by Margaret Hu (Duke).  UC Davis Law Review, Vol. 46, No. 2, 2012.

Abstract: An unprecedented historical movement is underway: a hostile takeover of federal immigration law and policy by state and local governments. The growing proliferation of thousands of state and local immigration laws can best be described as reverse-commandeering — a deliberate attempt to break the sole prerogative power of the federal government to dictate immigration policy. Increasingly, immigration federalism laws— state and local attempts to control unwanted migration — exemplify the inverse of the problem posed by the impermissible commandeering of state resources by the federal government under the Tenth Amendment. This growing movement represents an attempt to control the terms of what federal resources must be allocated to accommodate a myriad of state immigration enforcement programs. The state takeover of federal immigration database screening protocols in particular poses significant resource costs, and it imposes programmatic and prosecutorial conflict, frustrating the implementation of a coherent immigration policy at the federal level. Consequently, this Article concludes that these laws should be examined within a jurisprudential frame that, although using the Supremacy Clause and existing preemption doctrine, applies anti-commandeering principles.


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