American Immigration Microfederalism

Immigration power is thought to be a federal power in the United States, but the States and their localities play key roles in filling congressional immigration policy gaps. When confronted with a major migration crisis, these microfederal jurisdictions in a multi-layered federal system respond differently to the policy gaps. A healthy tolerance for microfederal policies promotes this experimentation and voter preference maximisation. A countervailing interest in uniformity, among other values, tempers the case for microfederalism by suggesting temporal or other limitations may be justified. States and localities have experimented with microfederal policies concerning migrants that touch on migration and integration policy. Restrictionist jurisdictions have promoted policies that discourage migration and integration. Their strategies include: formal cooperation with federal immigration enforcement when restrictionist in policy orientation; adoption of independent state-law measures to supplement federal immigration enforcement; and litigation to attempt to force or realign federal executive enforcement priorities on migration and integration. Sanctuary jurisdictions adopt inverse strategies. They may decline to participate in voluntary federal programs; refuse to access available federal immigration status information; deny federal requests to cooperate with federal detainer requests; provide access to State and local services to all comers, without regard to legal status; and, like restrictionist jurisdictions, litigate to attempt to force or realign the federal government’s enforcement priorities to favour migration and integration. Inevitably, conflict between federal and state administration results in litigation. The federal government attempts to assert its primacy in those matters touching on alien regulation. During the Trump administration, this effort has included the likely unconstitutional Executive Order 13768, but also the threat of affirmative federal pre-emption litigation against sanctuary jurisdictions. Provisions of the Immigration and Nationality Act may provide Trump with a basis for arguing that federal law expressly or impliedly pre-oempts conflicting state law.