Immigration Article of the Day: The Role of the Federal Executive in Catalyzing State Legislation on Immigration by Pratheepan Gulasekaram and Karthick Ramakrishnan

The Role of the Federal Executive in Catalyzing State Legislation on Immigration by Pratheepan Gulasekaram Santa Clara University School of Law and Karthick Ramakrishnan University of California, Riverside October 9, 2013

Abstract: Prior to 2007, the role of federal executive action in shaping immigration legislation focused largely on efforts at the national level. As Congress debated Comprehensive Immigration Reform proposals between 2001 and 2007, the Bush administration stepped up border enforcement and workplace raids, largely in an effort to show Congress that it was serious about enforcement as a key part of a comprehensive plan to solve the nation’s problem of unauthorized immigration. In prior work, we have shown that restrictive issue entrepreneurs on immigration succeeded in countering this narrative, stalemating Congressional action on comprehensive reform, and generating new state- and local-level legislation targeting unauthorized immigrants. Recently, we have seen that the wave of restrictive legislation has ebbed, and since 2012, there has been a new wave of pro-immigrant legislation emanating from the states. What accounts for this recent momentum reversal in the types of legislation being passed at the state level? Part of the answer certainly lies in the courts, as the U.S. Supreme Court and other federal courts placed significant limits on state enforcement schemes on immigration enforcement in 2012 and 2013 after signaling some openness in prior years on matters such as employer sanctions. Another part of the answer may lie in the political dynamics of the 2012 election, which showed the growing power of the immigrant vote, particularly among Latinos. However, another factor that has received comparatively little attention is the role of the federal executive in tipping the scales towards more permissive legislation on immigration at the state level. In this paper, we lay out a systematic conceptual framework with which to classify the relationship between federal executive action and state-level legislation. Next, we focus on three key moments in state-level legislation on immigration over the past decade, to flesh out the circumstances under which federal executive action may prompt an increase in state legislation on immigration, either in a permissive or restrictive direction. These include: 1) the inability of the Obama administration in its first term to use enforcement schemes as a way to defuse state-level demands for restrictive legislation, 2) the indirect effects of Deferred Action in dislodging states from a post-9/11 status quo on driver licenses and generating a new wave of permissive legislation, and 3) the intentional, yet calibrated, way that the federal government has engaged with state demands for exemptions from enforcement schemes such as Secure Communities, while at the same time signaling to Congress its seriousness about immigration enforcement.

KJ

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