Notes on the Multiple Facets of Immigration Federalism

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and tensions that underlie the very concept and promise of federalism itself. Because of this, the stake of immigration federalism cannot help but be driven into contested grounds. This essay is an initial foray into the issues that arise when some of the complexities of the federalism discourse are superimposed on the emerging field of immigration federalism. It does so by exploring the contemporary issues surrounding immigration through the lens of three different understandings of our federalist structure: as dueling sovereigns, transacting parties, and overlapping communities. These frames offer a way of talking about immigration federalism which goes beyond simply applying general values of federalism to the field of immigration regulation and enforcement. They also suggest that the best way to tackle this issue is to refrain from seeing immigration jurisprudence as distinct and separate from the broader federalism discourse; instead, we should understand it as always having been a part of the ongoing refinement of our federalist structure