A Conservative Case for Immigration Federalism
Our immigration debate has become polarized and rigid. On one hand, Donald Trump calls for the construction of a border wall and a temporary ban on Muslim immigrants. On the other, President Obama grants de facto amnesty to millions of illegal aliens through an executive action. Congress does nothing. Voters are frustrated and angry.
But there is a way forward. States can lead the way by taking legislative action to influence immigration and refugee policy on their own.
Outside the explicit powers of the federal government to create citizens and regulate movement across international borders, states have significant powers under the Tenth Amendment to affect immigration policy. They don't need Congress to pass an immigration bill or a federal agency to grant a waiver. The nuts and bolts of everyday life — public education, health and safety, policing — are in theory left to the states, which have plenary powers under the Constitution to govern how citizens participate in and receive public services.
For example, states that subsidize the cost of issuing driver's licenses to those with temporary lawful status could decrease or eliminate that subsidy. Or, states could simply deny licenses to illegal immigrants. Indeed, a panel of the Fifth Circuit ruled in November that 26 states have standing to sue the federal government because of the administrative costs they might incur as a result of the president's executive action. In January, the Supreme Court announced it would hear the case.
States say the executive action amounts to the unilateral creation of immigration law by the White House, in violation of the Constitution. They also say it places an unjust burden on some states. Under the executive action, those granted temporary lawful status will be authorized to work and collect federal benefits such as Social Security and Medicare, as well as state benefits like a driver's license and unemployment insurance. That means state taxpayers will bear much of the cost.
The states are right to sue, but they can also take unilateral action to mitigate the costs of federal immigration policy to their residents. Of course, states would be bound in these efforts by the Fourteenth Amendment and a body of existing case law that mitigates against states' going too far. In 1982, for example, the Supreme Court ruled in Plyler v. Doe that a Texas statute denying free public education to illegal immigrants violated the Equal Protection Clause because such discrimination didn't serve a substantial state interest.
But that doesn't mean states should never challenge precedent. Arguably, states face far greater illegal-immigration problems today than they did in 1982. The arrival of tens of thousands of unaccompanied minors in 2014 presents ongoing challenges for local communities, especially school districts that must absorb large numbers of students, many of whom are just beginning to learn English.
The problem isn't going away on its own. In recent months, thousands of unaccompanied minors and Cuban refugees have crossed the border.
Some states, rather than trying to implement policies to deter illegal immigration, are taking active steps to better integrate those here illegally. So-called "sanctuary cities" openly flout federal immigration law in passive ways, for example by prohibiting law enforcement from inquiring into the citizenship status of arrestees or refusing to cooperate with federal immigration officials. In 2013, eight states and the District of Columbia adopted some version of "driving privilege cards" for undocumented residents. Prior to 2013, only a handful of states did this.
The trend is also catching on at the municipal level. New York City adopted a municipal identification program in early 2015 that grants residents access to certain city benefits and services regardless of citizenship status, and last summer the city council allocated nearly $5 million for free legal assistance to non-citizens facing deportation proceedings.
There's no reason that states affected by illegal immigration couldn't take action in the other direction and ensure illegal immigrants and refugees don't unduly burden taxpayer-funded programs. Better yet, states could allow the free market to have a greater influence on who comes and goes by creating state-based guest-worker programs. We already devolve immigration decisions to corporations and institutions of higher education by allowing visa decisions to be made on the basis of employment or admission to a school. Why not let states do the same?
The Reason Foundation's Shikha Dalmia recently argued that states should be allowed to devise guest-worker programs that allow state employers to hire foreigners with temporary visas. As a model, she points to Canada's Provincial Nominee Program, which allows Canada's thirteen provinces to issue permanent residences based on population. Provinces themselves are free to set their own criteria and priorities, but most use the program to recruit workers as needed. The role of federal officials in Ottawa is limited to security and health checks.
This same approach would also apply to the Syrian refugee crisis. After authorities discovered that at least one of the terrorists behind the November 13 Paris attacks was able to enter France via Greece by posing as a refugee, governors in 31 states announced their opposition to admitting Syrian refugees, citing safety concerns. Although governors can't prohibit the federal government from settling refugees in their states, they can impose requirements on the refugees who do arrive.
Whatever policies states pursue, they don't need to ask permission from Washington, D.C. All they have to do is act. It's even possible, within limits, to adopt the "self-deportation" approach favored by Mitt Romney in his 2012 presidential bid — for instance, by cracking down on employers. If that means undocumented residents voluntarily leave for neighboring states with less stringent policies, so be it.
We shouldn't shy away from that kind of diversity. The contrasts would be revealing, perhaps instructive — and it might even show Congress how to work out long-term solutions to our mounting immigration problems. In the meantime, states should act on their own.
Brooke L. Rollins is president and CEO of the Texas Public Policy Foundation, where John D. Davidson is a senior fellow.