Immigration Article of the Day: Divided We Stand: Constitutionalizing Executive Immigration Reform Through Subfederal Regulation by Bianca M Figueroa-Santana
Divided We Stand: Constitutionalizing Executive Immigration Reform Through Subfederal Regulation by Bianca M Figueroa-Santana, Columbia University Law School, Columbia Law Review, 2015
Abstract: The narrative is by now familiar: Faced with congressional deadlock and a “Federal Government that does not want to enforce the immigration laws,” states have taken up the reins of immigration regulation. Yet, state action tells only half the story behind our current immigration landscape. In the past decade, while states busily legislated, President Barack Obama muscularly deployed executive power to reorient national immigration policy by implementing Deferred Action of Childhood Arrivals (DACA).
While the constitutionality of Obamian immigration reform has garnered considerable scholarly interest, less attention has been paid its human implications. For DACA beneficiaries and their allies, erudite curiosity about DACA’s doctrinal standing is crucial only insofar as it sheds light on the fate of millions of noncitizens who have come to rely on DACA for their dignity, livelihood, future, and freedom. Accordingly, this Note assesses the likelihood that noncitizen DACA beneficiaries will continue to enjoy the benefits and entitlements of deferred action after the Obama Administration cedes power. It argues that Obama’s deferred-action strategy has whittled a vital entrée for states into the world of immigration policy such that state power must be considered in assessing the durability and constitutionality of DACA and its attendant benefits and presents a strategy for incorporating state power into traditional analyses of presidential power.
Part I opens with a brief history of immigration federalism. Part I.A.1 traces fluctuations in state and federal immigration power from the preconstitutional era to the present and problematizes the myth of federal exclusivity. Part I.A.2 describes the momentous shift in constitutional immigration power to the subfederal level that has taken place during the Obama administration. Part II argues that a return to subfederal immigration reform is preferable to renewed federal dominance and possible under the Supreme Court’s most recent immigration jurisprudence and reveals ways in which integrationist states can use their newfound power to entrench policies such as DACA. Part III locates Obamian immigration reform, and deferred action in particular, within the traditional Youngstown framework, incorporating federalist principles into the Youngstown schema as a means of weighing state power in the constitutional balance. Ultimately, this Note argues that subfederal political support, if carefully cultivated and deftly maneuvered, can succeed in ratifying Obamian immigration reform, both within the Youngstown framework and as a matter of popular constitutionalism.
KJ