At the heart of the subfederal immigration revolution are two core questions. The first is what to do about our broken immigration system, especially regarding an estimated 11 million individuals unlawfully present. For now, at least, the only common denominator is that something should be done. This unsatisfying consensus invites the revolution’s second core question: which institution of government, relative to others, has the power to do what. Although Congress has the lawmaking power, it has yet to meet the demand for reform. Meanwhile, the federal executive has proven unable or unwilling to effectively enforce the law in effect. Frustrated, and by default, states and localities increasingly have sought to “cooperate” in immigration enforcement through self-help measures. The federal administration, however, has generally rebuked these subfederal initiatives and has sought to enjoin them on preemption grounds. Our unelected judiciary thus has been tasked to sort it out, twice by the Supreme Court in as many years.
This symposium article advances a theory of “immigration structuralism” directed to the question of relative power in the ongoing immigration revolution. Most other approaches to this question have rightly trained on federalism. Yet missing, until now, is a complimenting account for separation-of-powers. Immigration structuralism fills that void, offering an interdimensional approach to preemption.
Sensitivity to separation-of-powers is especially critical when the federal executive claims — as it did with mixed results in Arizona v. United States — that its enforcement policies have preemptive effect. As highlighted herein, however, approaches to preemption that sideline the distinction between executive policies and congressional statutes incentivize Congress to abdicate lawmaking to the executive, the executive to usurp Congress’s lawmaking role, or both. In turn, these aberrations in the lawmaking process undermine the political and procedural protections guaranteed to the states in the Constitution. My suggested approach, by contrast, draws a fundamental distinction between legislative and nonbinding executive action, such that only the former may trump subfederal law. As will be seen, this approach better safeguards both federalism and separation-of-powers.
To be sure, answers to the constitutional question of which have practical implications for the political outcomes of what. As I hope to convince, however, a consequentialist approach to the question of what to do about immigration should not distort or substitute for the separate question of which institution has the power to do it.