What Role Should States Play in Immigration Policy?

By Staff | April 23, 2012

For how long will immigration continue to be a national concern dealt with through federal policy?

Since Arizona signed its immigration bill into law two years ago, five states have followed suit, the Obama Administration has lead a forceful challenge, and after bit-part suspensions by lower courts, the question of a state-by-state role in immigration heads to the Supreme Court this Wednesday.

Unlike recent cases (e.g. health care) when the Supreme Court has been asked to assess the constitutionality of federal actions in so far as they apply to states, this case turns the argument on its head in alleging disruptive intrusion by states into the federal policy field of immigration.

Arizona’s “SB 1070”, a law that, among other things, expands the powers of state police officers to stop and hold anyone suspected of being an illegal immigrant, inspired a slew of other states (Georgia, Alabama, Indiana, South Carolina and Utah) to pass their own versions.

Almost immediately, the Obama administration challenged the law on the basis that these state laws were encroaching on federal terrain: “Arizona has adopted its own immigration policy, which focuses solely on maximum enforcement and pays no heed to the multifaceted judgments” that immigration law provides for the executive branch to make, the Obama administration wrote in its brief.

Later, four of the more contentious provisions of the law were suspended by federal courts who later temporarily blocked the laws of other states.

Now with the Supreme Court, this case has the potential to be a defining moment for immigration policy, and another defining moment this year ( the other being healthcare) for federal power and the relationship between federal government and the states. For immigration, the question is whether policy will be governed by national interest, or if every state and locality will be free to do as they please, according to local bias.

While it’s hard to predict how the Supreme Court will rule, it wouldn’t be entirely surprising if this right-leaning court chose to uphold some of the law’s more contested sections.

But, even if this were to be the case, the states in question may find themselves with a fight on their hands as unanticipated consequences for farmers and businesses turn traditionally conservative groups against anti-immigration laws.

Already, Alabama was forced to revise legislation, Mississippi’s law died in the Senate after a surge of opposition, and in Georgia, outcry from farmers meant that the state legislature was forced to end its session without any new immigration measures for the first time in six years.

In the light of these events, this debate looks to be moving away from the typical liberal versus conservative and federal power versus state power script we’re all too used to.