Federalism and Undocumented Immigration

Abstract

Federalism can be an important analytical tool available to courts in upholding the individual rights of undocumented aliens. The complexity of the socio-economic and political context of immigration has made Congressional attempts to regulate the field difflicult. In the absence of a clear legislative mandate, the courts have played an active role in reviewing state laws and policies. (Judicial concern for federalism questions has often been seen as mutually exclusive with equal protection values when applied to laws regarding the undocumented) Recent decisions have /ocused on either pre-emption or equal protection criteriafor reviewing state legislation, but not both. The modelfor judicial review proposed in this paper permits courts to balance state autonomy values with anti-discrimination protections in a step-by-step procedure for analyzing state treatment of the undocumented Through the process, the rights of undocumented aliens will be safeguarded to the fullest extent possible. To what extent should courts take federalism concerns into account when reviewing state legislation and policies regarding undocumented aliens.' The recent U.S. Supreme Court decision of Plyler v. Doe applied equal protection analysis to strike down a state law discriminating against undocumented alien children, but did not resolve the pre-emption issues raised in the lower courts and in previous cases.2 In skirting the issue of federalism, the Plyler court followed a line of analysis articulated by Professor Jesse Choper as "the federalism proposal."3 This proposal calls for judicial restraint in questions regarding the ultimate power of the federal government vis-a-vis the states, and allows for intervention only to protect individual rights.4 Similarly, recent legal scholarship on undocumented workers puts forth models of judicial review that either neglect federalism entirely or fail to directly address it.5 This essay will show that federalism questions are relevant