Since the country’s inception, how the United States deals with its immigrants has plagued all levels of government and successive presidential and congressional administrations. In part, this is due to the overlapping and oft-competing priorities of state and local governments and their desire to control the influx of immigrants entering the United States. The 10th Amendment establishes state sovereignty, giving states the ability to create and enforce laws within their own borders, as long as they do not preempt federal law. Arguably, states have the right to legislate within their borders on matters as diverse as education and criminal punishment. However, immigration law has increasingly muddled the understanding of where federal and state powers begin, end and overlap. This messy legal area has resulted in active scholarly debate.
Previously I featured an interview with Dr. Kevin Fandl, an Assistant Professor of Legal Studies and Global Business Strategy at the Fox School of Business at Temple University. Dr. Fandl’s work on immigration matters provides unique insights into immigration law, policy, and reform. Now in an upcoming publication, Putting States Out of the Immigration Law Enforcement Business, Dr. Fandl provides novel arguments that focus on the exclusive role of the federal government in the immigration law enforcement arena. Dr. Fandl’s overarching analysis covers federal immigration law, from its inception, explaining how it remains within the realm of federal powers, and ultimately indicates that the basis for state usurpation of the federal law relies on a faulty premise.
Dr. Fandl’s analysis begins by detailing the historical development of immigration law, and identifying immigration as a federally controlled area of law that largely pre-empts state action. In addition to a detailed historical analysis his work delves into recent state immigration enforcement actions, such as Arizona’s SB 1070 and Alabama’s HB 56, and the federal court’s rejection of these laws as evidence of federal pre-emption. Dr. Fandl’s analysis explores the Supreme Court’s decision that the federal government maintains jurisdiction over immigration law. His conclusion that state governments maintain general police powers to protect the interests of their citizens, and arguments raised about the negative effects of unlawful immigration are flawed is a novel attempt at highlighting faulty data surrounding the impact of undocumented migrants on the U.S. economic market and criminal climate. His premise rests on the notion that upholding and reinforcing a myriad of state laws would, therefore, only create more problems rather than solve them. However, given that this area of law is constantly evolving, it is unlikely that this power struggle between federal and state will be resolved in the near future.
To read Dr. Fandl’s full argument and his concluding recommendations make sure to check out the publication featured in the Harvard Law and Policy Review Journal.