Who Controls Immigration Policy?

Rick Su, Local Fragmentation as Immigration Regulation, 47 Hous. L. Rev. 367 (2010), available at SSRN. Jennifer Chacon The borders of immigration law are incredibly porous. Although immigration law, strictly defined, encompasses the rules that govern the terms of admission into and exclusion or expulsion from the country, immigration law is in fact inextricably intertwined with a whole host of other legal regimes. This includes obvious examples like naturalization and alienage laws, as well as labor law, criminal law and economic policy. But it also includes a host of less obvious candidates. In his recent article in the Houston Law Review, Rick Su examines an area of law that is not often thought about in conjunction with immigration law: local government law. The connection between immigration law and local government law is not intuitive. Since the late Nineteenth Century, courts have found that the national government has the exclusive power to regulate immigration law, and that Congress' power to enact immigration legislation is plenary. States and localities, therefore, must limit their own efforts to regulate immigration to areas of the law that are not preempted by Congress' fairly comprehensive immigration regulation. Although state and local governments recently have played a larger role in enforcing federal immigration law than has historically been the case, courts generally have rejected efforts on the part of states and localities to directly regulate immigration through their own laws. This can be seen in the largely unsuccessful efforts of localities like Hazelton, Pennsylvania and states like Arizona to pass immigration-related ordinances that withstand constitutional scrutiny. Continue reading "Who Controls Immigration Policy?"

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