Immigration and Cooperative Federalism: Toward a Doctrinal Framework

What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate about the proper place of states in regulating immigrants. According to recent statistics, restrictionist state law is on the decline and, as of mid-2013, there has been an increase in inclusionary state laws. In light of this shifting landscape, this Essay attempts to advance the discussion beyond the normative dimension of immigration federalism — whether states should be involved in the enterprise — to consider how states can be involved