Excerpted From: Joseph F. Lin, Looking Closer to Home: Negotiating Immigration Localism and State Police Power, 23 Rutgers Race & the Law Review 383 (2022) (158 Footnotes) (Full Document)

Cities, counties, and town governments in America have been increasingly a battle ground for change in immigrant rights. Localities are increasingly diverse. Localities are at the forefront of policy innovation in many areas, including immigration, economic development, public safety, health, housing, labor and employment environment, and LGBT rights. This trend commands us to revisit the model of State dominance in the State-Local legal relationship. Rick Su defines localism as “the legal, political, and ideological structure that organizes the institution of local governments under the state level.” While our federal system is actually three levels - the federal, state, and local, most analysis on immigration focuses on the relationship between federal and state systems and leaves unexplored the relationship of state and localities. In the structure of federalism, the rationale for state sovereignty centers on promoting efficiency and intergovernmental competition, checking governmental tyranny, encouraging pluralism and experiments in democratic values, and reinforcing community and democratic competition. At the same time, the autonomy of localities could also be justified for similar reasons.

Since the Constitution is silent on the role of localities, localities have existed as “creatures of state law.” There are several approaches to the degree of power localities have in determining its affairs. Two main approaches of delegation of power are Dillon's rule and home rule. In Dillon's rule jurisdictions, local governments are formally legally subordinate to the states and “at the will” of state legislatures. As such, local governments have no inherent lawmaking authority and possess only powers that are expressly delegated bay the state or “indispensable.” To the extent that Dillon's rule in jurisprudence is a rule of construction, delegated authority is construed narrowly against local authority. Under home rule, a state constitution “immunizes” local governments against state interference, preserving the local government as “imperirum in imperio,” or a government within a government. A modification of home rule, the 1953 American Municipal Association (AMA) model, provided that the state legislature retained nearly plenary power to modify home rule, cabined by certain constitutional constraints. Nearly all states amended their constitutions' articles or adopted their constitutions after 1953.

In the immigration context, immigration localism is particularly useful in analyzing the role of local enforcement in immigration regulation. Immigration regulation may be direct cooperation with the federal government, or selective enforcement of broad state laws. For more than 150 years, it was well-established the federal government has plenary power of immigration. Yet in the past two decades, the Court has acknowledged some areas of state and local involvement in immigration enforcement. Leticia Saucedo terms this emerging jurisprudence as “new federalism,” or the notion that devolved, subfederal duties of immigration enforcement fall within zones of the State's police power, which includes crime, employment, education, and families.

One view of federalism is to understand the relationship of federal government and cooperation with the states. For instance, in the enforcement of immigration laws, Leticia Saucedo, Jennifer Chacón and others have noted instances in 1986 and 1996 where Congress initiated and set conditions for States to operationalize enforcement. In the Immigration Reform and Control Act of 1986 (IRCA), Congress prohibited states and localities from barring employees in reporting immigration status violations to federal authorities and required federal government to respond to sub-federal agencies concerning citizenship. Similarly, in the Illegal Immigrant Responsibility and Reform Act of 1996 (IIRIRA), Congress carved out exceptions for the Attorney General to delegate immigration enforcement to state and local police. Notably, U.S.C. § 1373 and 287(g) agreements formalize the ability of states to “opt in” to deputizing local law enforcement to assist federal immigration law enforcement.

Given the law's changes in state and local cooperation with federal law enforcement, so too, has the meaning of sanctuary. In the past decade, the sanctuary movement focused on the right of states localities to resist federal immigration enforcement. These narratives have catalyzed scholarship on the State's roles in shaping immigration policy within constitutional limits without triggering federal preemption. Hiroshi Motomura defines sanctuary as “laws, policies, or other actions by governments and by nongovernmental actors that have the effect of insulating immigrants from immigration law enforcement.” For immigrant advocates, sanctuary is an affirmative tool of integration.

One chief goal of sanctuary is noncooperation. Accordingly, states and localities work to build trust between local law enforcement and improve relationships, particularly between local law enforcement and immigrants who would otherwise be reluctant to contact the police due to fear of revealing their unauthorized immigration status. States have also applied noncooperation stance in issues related to employer verification and employer sanctions. For instance, California passed a law that expressly states neither the state nor jurisdictions within the state's ambit can mandate use of the federal E-Verify database.

Sanctuary states generally apply a more integrative approach, expanding benefits to further incorporate immigrants into local economic and civic life. An increasing number of states have adopted numerous programs for which undocumented immigrants are eligible, such as municipal identification programs, in-state tuition, and obtaining professional and occupational licenses.

Other states and localities have opted to bolster their cooperation with federal immigration authorities. For anti-sanctuary jurisdictions, sanctuary is an obstacle to the local or state law enforcement from fulfilling its “duties” to federal immigration enforcement authorities. Annie Lai has highlighted the trend of “proxy criminalization,” where States “punish [] conduct by undocumented immigrants linked closely to their social and economic survival.” Such jurisdictions have limited in-state tuition, increasingly prosecuted and criminalized using someone else's social security number to obtain employment, driving without licenses, and even zoning ordinances that limit public space and housing. Those who oppose sanctuary policies shape sanctuary as a way to avoid criminal liability, conflating unauthorized immigration status (a civil offense) with criminal status.

Immigration localism in itself has no “political valence” and its application can be a double-edged sword, depending on the political ideology of those who wield the tool of localism. Like general localism, immigration localism can facilitate civic participation in a direct way and foster innovation, even if amidst an anti-Sanctuary political environment. Moreover, working at the local level can “wean us from the theoretical reliance on federal.” On the other hand, localism can be prone to shifting winds of parochialism and create a patchwork of inconsistent policies from one locale to the next. Specifically, increased local discretion can lead to (1) proliferation of anti-sanctuary localities and (2) anti-sanctuary localities can weaken state-level sanctuary protections.

For example, if a so-called Sanctuary State forbids local governments from cooperating with federal immigration authorities through a 287(g) agreement. But when one county openly defies such an order, do federalism principles support the State or the county? Conversely, if an anti-Sanctuary State prohibits local sanctuary policies and imposes severe punishments on cities and officials, would the state or city prevail?

Localism's “double-edged sword” compels us to constrain localism through normative values “clearly discernible from within state constitutional law” and “equally grounded in the logic of local power itself.” Many scholars have called attention to further theorizing the horizontal relationship of states and localities, particularly when states and localities disagree. If States can shape their own values and determine which immigrants are “desirable” within their borders, this suggests that normative definitions of who “we” are within a State will be crucial in advancing a social justice agenda. A second constraint on State police power, regardless of politics, can be found in federal law (U.S.C. 14141) as well as people-powered accountability measures (e.g. Open Public Records Act).

This Note explores how a State's conflicting State and local policy on immigration regulation will be affected the Supreme Court's 2020 decision in Kansas v. Garcia. In Kansas, the Court held that Congress's Immigration Reform and Control Act (IRCA) of 1986 did not preempt the State of Kansas's criminal identity theft statute in a case where three immigrant plaintiffs each used someone else's social security number to obtain employment. I argue here that the Court's affirmation of state power in Kansas to regulate facially-neutral identity thefts leaves room for further theorization of state-local relationship in immigration regulation.

First, in Part I, I analyze the decision in Kansas within a vertical preemption approach, as well as horizontal localist approach. In the latter approach, I posit how context, demographics, and home rule complicate our understanding of how Kansas will affect local law enforcement, immigrants, and public safety. Then, in Part II, I show in Sanctuary states like New Jersey, Kansas strengthens the rationale for state-wide sanctuary policies like New Jersey's Attorney General Directive to limit local law enforcement cooperation with federal immigration authorities and build public trust among all New Jerseyans. I summarize the values articulated between anti-sanctuary and sanctuary forces. Then, I consider how home rule and intrastate preemption could interact so as to uphold a State-wide sanctuary initiative without stifling local innovation in other areas. In Part III, I conclude with highlighting some local checks on State power, including statutory and people-powered approaches that reflect constitutional and civil rights considerations.

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The framing of the narrative and values around immigrants can substantially change the landscape of media, legislation, litigation, and movement building. Arizona, and other cases served as local battlegrounds for national issues related to immigration, where interests and “issue entrepreneurs” from different political ideologies tested out new state and local immigration-related policies absent concrete federal action. The contours of state police power as “enforcement” or “integration” depending on political ideology obviates a need for shifts in campaign values and coalition building strategies at a state and local level.

The effects of an immigrant-inclusive society can be seen in our everyday built environment and quotidian interactions at a workplace, small business, school, hospital, police station, or elsewhere. From Kansas, we see that a holding of no federal preemption of state law suggests that we look “closer to home,” opening the possibility to explore state-local governance issues, including legislative and judicial doctrines like home rule and intrastate preemption. While a localism model is not a panacea and has its risks for immigrant communities, current and future constitutional and statutory mechanisms can serve as important checks.

J.D. Candidate 2022, Rutgers Law School; Master's in Urban Planning, City University of New York - Hunter Colle