{"id":2419,"date":"2018-10-26T03:23:28","date_gmt":"2018-10-26T03:23:28","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2419"},"modified":"2018-10-26T03:23:28","modified_gmt":"2018-10-26T03:23:28","slug":"immigration-struggle-can-states-resist-trump-on-immigration","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2018\/10\/26\/immigration-struggle-can-states-resist-trump-on-immigration\/","title":{"rendered":"Immigration Struggle: Can States Resist Trump on Immigration?"},"content":{"rendered":"The battle over U.S. immigration policy has raged on, albeit in varying levels of intensity, for the majority of our nation\u2019s existence. From the Alien and Sedition Acts of 1798<\/a> <\/em>to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996<\/a><\/em>, Congress has wrestled with the issue of how to regulate the flow of immigrants into the country. Unfortunately, this struggle has often (if not always) been underscored by hostility and animus toward the prevailing immigrant group of a particular era. As an article published in The Atlantic describes<\/a><\/em>, \u201c[t]here was a time in America when the Irish were characterized as apes, Italians as street filth, and Chinese as parasitic locusts.\u201d These characterizations continue to cast a dark shadow on the history of the United States.\n\nCentering his candidacy<\/a> <\/em>and presidency on restricting the flow of immigrants, President Trump has ripped opened a new chapter in America\u2019s struggle with immigration policy. This time, however, the animus and hostility has been directed largely toward Hispanic immigrants. In particular,he has identified Mexican immigrants as: \u201c\u2026people that have lots of problems, and they\u2019re bringing those problems with us. They\u2019re bringing drugs. They\u2019re bringing crime. They\u2019re rapists.\u2026<\/a><\/em>\u201d This animus has also been directed toward Muslim immigrants, with candidate Trump threatening a \u201ccomplete shutdown of Muslims entering the United States….<\/a><\/em>\u201d\n\nPresident Trump\u2019s attitude toward immigration has been meet with sharp criticism, sparking a highly motivated opposition movement<\/a><\/em>. But, with Republicans controlling both the House and the Senate, these opponents have limited options at the federal level. Thus, many have relied on Democrat-controlled states to act as a bulwark against the Trump Administration\u2019s immigration efforts. For example, Hawaii challenged Trump\u2019s \u201cMuslim Ban\u201d Executive Order<\/a><\/em>in court with the support of amicus briefs from several other states<\/a><\/em>. Additionally, California passed legislation that allows local jurisdictions to ignore federal immigration orders<\/a><\/em>. But, are these state-based strategies legally sound?\n\nThis two-part blog seeks to briefly trace the origins of modern immigration law, examine the failure of state-based immigration policies during the Obama administration, and predict the likelihood of success for state resistance against Trump\u2019s crackdown on immigration.\n

Who Determines Immigration Law?<\/p>\nThe answer to who controls immigration law, or at least who should control immigration law in our federalist system, is far fuzzier than the casual political observer would likely believe. This is because the Constitution says very little about immigration. While one would expect the Constitution to enumerate whether immigration power lies with Congress, the States, or the Executive Branch, it does not expressly do so<\/a><\/em>.\n\nInstead, the courts have had to rely on two relevant provisions of the Constitution in determining who has authority over immigration. First, Article 1 Section 8 Clause 4<\/a> <\/em>grants Congress the power to create a uniform law of naturalization. However, controlling naturalization means control over how noncitizens become citizens, not necessarily over who is able to permanently or temporarily immigrate here. Second, Article 1 Section 8 Clause 3<\/a> <\/em>of the Constitution grants Congress the power to \u201cregulate commerce with foreign nations and among the several states.\u2026\u201d But, is regulating commerce a license to regulate the flow of foreign people? This interpretation appears strained.\n\nThe Supreme Court laid an early foundation for Congressional control over immigration law in the Passenger<\/a> <\/em>and Head Money Cases<\/a><\/em>, respectively finding that the regulation of which passengers could be admitted from a vessel belonged to Congress, and that states could not impose a head tax on admitted immigrants. The Court reasoned that these powers belonged solely to Congress because of the potential for state interference with foreign commerce.\n\nSubsequently, the Court took a pivotal step toward confirming the Federal Government\u2019s control over immigration around the close of the 19th <\/sup>Century. Here, the Court largely abandoned its rather attenuated reliance on express Constitutional language. First, in Chae Chan Ping v. the United States<\/a><\/em>, the Court upheld Congress\u2019s power to deny immigrants entry into the country \u201cat any time.\u201d In its decision, the Court articulated that the national government has control over immigration due to an unenumerated power that is inherent in its sovereignty. The Court upheld this rationale four years later in 1893 when it decided Fong Yue Ting v. United States<\/a><\/em>, stating that \u201c[t]he right to exclude or expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace\u2026[is] an inherent inalienable right of every sovereign and independent nation.\u2026\u201d\n\nThis doctrine of plenary federal power over immigration remains a bedrock of Supreme Court jurisprudence. In more recent times, this concept has emerged in cases that deal with the conditioning of welfare benefits to noncitizens. While the Court applied strict scrutiny to strike down state-based legislation<\/a> <\/em>which conditioned a noncitizen\u2019s receipt of welfare benefits on their length of residency, it applied mere rationale basis review to federal legislation which did the exact same<\/a><\/em>. Here, the court emphasized that it had a more \u201cnarrow standard of review of decisions made by the Congress or the President<\/a> <\/span><\/em>in the area of immigration and naturalization.\u201d\n

Failure of State-Based Immigration Legislation During Barack Obama\u2019s Presidency<\/p>\n While the Court has substantially entrenched Congress\u2019s and the President\u2019s power over immigration, the gray area created by the lack of an express Constitutional directive has invited States to test whether they retain any power. This is especially true when a State\u2019s ideology has clashed with the President\u2019s. For example, when Arizona\u2019s conservative state legislature became dismayed at the lack of federal progress against illegal immigration<\/a> <\/em>and angry over President Obama\u2019s support of the proposed Dream Act<\/a><\/em>, it retaliated by passing Arizona State Bill 1070<\/a><\/em>.\n\nThis statute (1) made failure to comply with federal alien-registration requirements a state misdemeanor (2) made it a misdemeanor for an unauthorized alien to seek or engage in work within the state (3) authorized law enforcement to arrest, without a warrant, a person the officer has probable cause to believe has committed any public offense that makes the person deportable and (4) required officers who conduct a stop, detention, or arrest to attempt to verify the person\u2019s immigration status with the federal government.\n\n <\/em>Arizona argued that S.B. 1070 only created mechanisms to enforce federal immigration law and that these measures were necessary to protect this border state from the harmful effects of mass immigration<\/a><\/em>. Opponents challenged this legislation and the resulting decision in Arizona v. United States <\/em>further eroded state control over immigration.\n\nWhile the dissent argued that the lack of Constitutional clarity allowed States to retain a degree of their own sovereign power over immigration, the majority disagreed, striking down most of Arizona\u2019s law<\/a><\/em>. Here, the Court reaffirmed the Federal Government\u2019s broad power over immigration, stating that it is important for the sovereign power to set a uniform immigration policy, partly due to its control over foreign relations. This reasoning implicates the Supremacy Clause of Article 6 of the Constitution, thereby subordinating the States\u2019 authority. Thus, the Court concluded that Arizona\u2019s legislation was preempted by federal authority because Congress and the President regulate or control immigration to an extent that prohibits State action.\n\nUltimately, the Court has embarked upon a 200-year doctrinal journey, entrenching immigration authority firmly with the Federal Government. Next, Part Two will explore how Trump\u2019s opponents are challenging his immigration policies from outside the Federal Government and the likelihood of success given the challenging legal landscape established by the Court.\n\n \n\nSuggested citation: Zach Espinoza, Immigration Struggle: Can States Resist Trump on Immigration?<\/em>, <\/span>Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter<\/span>, (Oct. 26, 2018), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/immigration-struggle-can-states-resist-trump-on-immigration\/.<\/span>","protected":false},"excerpt":{"rendered":"

This two-part blog seeks to briefly trace the origins of modern immigration law, examine the failure of state-based immigration policies during the Obama administration, and predict the likelihood of success for state resistance against Trump\u2019s crackdown on immigration.<\/p>\n","protected":false},"author":1,"featured_media":2420,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,27,28],"tags":[159,643,811,1060,1119,1564],"class_list":["post-2419","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-recent-stories","category-student-blogs","tag-arizona-state-bill-1070","tag-federal-v-state-power","tag-immigration","tag-muslim-ban","tag-obama","tag-trump"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2419","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2419"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2419\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2420"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2419"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2419"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2419"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}