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Monday, December 12, 2011

The Politics of Immigration versus McCulloch's Tradition of Dual Federalism

One of the deeper traditions of American federalism is that, absent mutual consent, each level of government enforces only its own laws. This tradition has both centralizing and decentralizing implications. On the side of centralization, there is a presumption that states cannot horn in on the business of implementing federal legislation without the permission of the federal government. On the decentralizing side, there is a constitutional norm that Congress cannot impose an obligation on the states to enforce federal laws against private persons without the states' consent. Both of these traditions emerge from the same notion outlined in McCulloch -- the idea that the federal government's "means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends." (McCulloch 17 U.S. 316, 424 (1819)).

But this McCulloch-based tradition is thoroughly upended in the context of immigration. On one hand, self-styled conservatives who profess a fondness for state power angrily denounce state and local governments that refuse to lend their law enforcement personnel to the task of carrying out federal immigration policy. Next Gingrich was so incensed by this non-federal defiance of federal immigration policy that he called for stiff spending clause sanctions on states that adopt or permit such "sanctuary" policies.

On the other hand, the Court's cert grant in Arizona v. United States highlights conservatives' willingness to allow the states to commandeer federal policy, again contrary to McCulloch's traditional prescription. Although the issues of statutory construction are complex, the basic claim of Arizona is that the Immigration & Naturalization Act ("INA")'s authorization for non-federal governments to "cooperate with the Attorney General" in immigration enforcement allows Arizona to "help" the feds carry out the INA even when the Attorney General affirmatively rejects that "help." As I have argued elsewhere, the plain meaning of "cooperat[ion]" implies mutual agreement by both sides of the cooperative bargain. But the problem with Arizona's position is not merely that it seems like an odd reading of the text: It is also an odd reading of U.S. constitutional presumptions. The normal presumption is, as McCulloch indicates, that the federal executive decides how to carry out federal statutes. Jay Bybee's 2002 OLC memo defending an "inherent" right of the states to enforce federal immigration laws is the apotheosis of this extraordinary reversal of McCulloch's presumption that "on [federal] means alone was [the federal government] expected to rely for the accomplishment of its ends."

What is going on? Why are conservatives loading states with powers to meddle in federal business while denying them the right to abstain from enforcing federal law? Does anti-immigrant fervor simply induce them opportunistically toss federalism norms (not to mention the theory of the unitary executive) out the window? Or is there a new and different but nevertheless sensible theory of federalism brewing in these anti-immigrant stances?

Posted by Rick Hills on December 12, 2011 at 10:24 PM | Permalink

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