The President and Immigration Federalism

This Article lays out a systematic, conceptual framework to better understand the relationship between federal executive action and state- level legislation in immigration. Prior immigration law scholarship has focused on structural power questions between the U.S. federal government—as a unitary entity—and the states, while newer scholarship has examined separation of powers concerns between the President and Congress. This Article builds on both of these traditions, focusing on the intersectional relationship between the federal Executive and subfederal lawmaking, which is an important yet overlooked dynamic in the resurgence of immigration federalism. First, this Article explains the relationship between presidential action and state reaction in the immigration field, deriving a typology from historical examples of curtailing, co-opting, and catalyzing state action. Next, it uses that tripartite framework to explicate the ways that the Obama Presidency has deepened presidential power through immigration federalism, sometimes in unintentional ways. As an example of an unintended consequence of presidential action, this Article provides a novel explanation for the rise of state driver’s license laws for unauthorized immigrants. This Article’s analysis concludes that the President wields significant influence to bring coherency to immigration enforcement and instantiate a de facto national policy, using states to entrench his vision. In some circumstances, however, states may resist presidential action, thereby functioning as Congress’s proxy in separation of powers battles over immigration policy