What Can States Do About Immigration?

By Lindsay Ficklin.

In recent weeks, United States Customs and Border Protection (CBP) has begun releasing asylum-seekers into Yuma, Arizona, a small town on the United States–Mexico border. The releases follow a surge in border apprehensions coupled with detention centers reaching capacity due to social distancing guidelines. According to one CBP Public Affairs Officer, these migrants are “processed for removal, provided a Notice to Appear, and released into the U.S. to await a future immigration hearing.”

The release of these migrants into the small town of Yuma has raised concerns for some, including Yuma Mayor Doug Nicholls. Specifically, the Mayor has expressed concerns that the small community lacks the resources to address the situation. For example, the town has no permanent migrant shelters or non-profits to house, feed, and support the migrants. Additionally, after being hit hard by COVID-19, the town may not be prepared for additional pressure that unvaccinated and untested migrants could place on its medical care system.

In response to these concerns, Mayor Nicholls and other Arizona leaders have turned to the federal government. These leaders have requested funding and criticized the new administration’s handling of the policy transition. Additionally, Mayor Nicholls has called for the prohibition of the practice of releasing migrants into small communities. He explained, “This is a national issue, not a Yuma issue. . . . There needs to be a national solution.”

Border states, cities, and towns are naturally more sensitive to the impact of immigration policies than the federal government, and consequently often become concerned about immigration issues long before the federal government takes action. States and localities, however, have limited authority to take action themselves in the realm of immigration—a federal body of law. In many ways this leaves border localities facing immigration crises with little recourse besides requesting help from the federal government. But are there other options?   

Federal Immigration Authority

While the United States Constitution does not expressly grant an immigration power to the federal government, the United States Supreme Court has held that the power is implied. In the late 1800s, in Chae Chan Ping v. United States and Fong Yue Ting v. United States, the Court determined, respectively, that the powers to exclude (or deny admission to) and expel (or deport) non-United States citizens are “incident[s] of sovereignty.” That is, the powers are inherent powers belonging to all independent nations. Chae Chan Ping and Fong Yue Ting further established that these powers are allocated to the federal government, not the states, likening the powers to other federal foreign affairs powers enumerated in the Constitution.

State Immigration Authority

The Supremacy Clause of the United States Constitution asserts that federal law “shall be the supreme Law of the Land” and will supersede state laws and bind state judges. Thus, when states or localities promulgate laws that conflict with federal law, the federal law will take precedence, preempting (or invalidating) the state law. In the immigration context, any state law that attempts to regulate immigration will be preempted since power over immigration was allocated exclusively to the federal government in Chae Chan Ping and Fong Yue Ting. Nevertheless, states and localities can utilize the powers they do have in an attempt to either dissuade immigrants from entering their communities or to become more immigrant-friendly.

Actions that fall squarely within a state’s authority may be implemented to address immigration so long as the action does not impact federal immigration power in a way that would be considered preempted. For example, states may require employers—whose businesses states license—to verify the authenticity of a worker’s credentials and may revoke or suspend a business license if an employer knowingly hired an unauthorized immigrant. In Chamber of Commerce of the United States v. Whiting, the United States Supreme Court upheld an Arizona law that did just that. The Court explained, “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.” Similarly, states may use their licensing laws to prevent unauthorized immigrants from receiving driver’s licenses and license plates. This kind of state action can make it difficult for unauthorized immigrants to obtain employment, identify themselves, and easily commute, and may work to deter immigration to certain areas.

When attempting to deter unlawful immigration, however, states must take care to not violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In Plyler v. Doe, the United States Supreme Court invalidated a Texas law that authorized local school districts to deny enrollment in their public schools to children not legally admitted to the country. In that case, concerns with creating a “shadow population” or “underclass” of uneducated, unauthorized migrants outweighed Texas’s interests in deterring immigration and preventing strain on the State’s limited resources. Thus, when treating noncitizens and citizens differently, states must tread with caution.  

Finally, just as states and localities may implement laws to deter immigration, they may also choose to take action that encourages or supports immigration. States may issue driver’s licenses and other identification documentation, offer English-language classes, and enact “sanctuary” policies that prevent full cooperation with federal immigration enforcement authorities. For example, California, like Arizona, is experiencing an increase in migrants being released into the state following the Biden administration’s efforts to end the Trump administration’s “Remain in Mexico” program. But California has responded by allocating funds to help the asylum-seekers. The State has paid for hotel rooms to allow migrants to quarantine and has provided COVID-19 testing, food, and transportation to migrants. States may choose to implement immigrant-friendly policies in recognition of immigrants’ value to local communities and economies.

Conclusion

While states have very limited authority to operate in the realm of immigration, they are not entirely restricted in the actions they may take. Using state authority, states may implement policies and laws that encourage or deter immigration. Nevertheless, regulation of immigration remains a federal power. Thus, Mayor Nicholls was correct in saying that the problem his community is currently facing—where immigrants are being released into a community that lacks the resources to support them—is a federal problem. But while a national solution would arguably be most effective, state solutions are possible.

"US Immigration Checkpoint" by jonathan mcintosh is licensed under CC BY 2.0

Share with Your Network

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on reddit
Reddit
Share on email
Email
Share on print
Print

By Lindsay Ficklin

J.D. Candidate, 2022

Lindsay is a second-year law student from Spanish Fork, Utah. Prior to law school, she earned a Bachelor of Science degree in Philosophy from Utah Valley University. In her free time, she enjoys skiing, hiking, camping, and reading.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.