Notice & Comment

Ad Law Reading Room: “Immigration Status Federalism,” by David Chen

Today’s Ad Law Reading Room entry is “Immigration Status Federalism,” by David Chen, which is forthcoming in the Yale Journal on Regulation. Here is the abstract:

Recent subfederal interventions into immigration policymaking have sparked an explosion of federalism scholarship, but nearly all such accounts focus on two domains: enforcement and state benefits. The literature continues to assume that the federal government maintains exclusive control over immigration status decisions. This article challenges that conventional wisdom by identifying a third missing category of immigration federalism—state and local influence over who receives immigration status. It unearths empirical data from the fifty states to reveal far more vertical contestation in immigration selection decisions than previously documented and develops a theoretical framework to explain how such contestation differs from existing immigration federalism accounts. States are increasingly participating in the adjudication of immigration status and are doing so consciously, often responding to federal policy. As federal-state disputes over immigration deepen, they are likely to move further into this new frontier. Current doctrine, however, is ill-equipped to adjudicate disputes about the scope of state authority in the immigration statute as it relies on outdated presumptions rooted in the respective sovereign powers of federal and state governments. Courts should instead give greater consideration to conventional administrative law principles when evaluating states’ roles in immigration adjudication, recognizing them as joint-policymakers in the selection of immigrants.

This article is the first to identify state involvement in status determinations as a distinct field of immigration federalism worthy of attention, and it is the first to assemble empirical evidence from the fifty states to challenge long-held assumptions that immigrant selection remains the last domain of federal exclusivity in immigration law. Finally, beyond immigration, this article introduces considerations for the study of federalism in agency adjudication, an underexplored field of administrative law.

Readers of this blog are no doubt familiar with efforts by state governments seeking to limit (or promote) state involvement in immigration enforcement. They’re also likely aware of state laws that extend (or deny access to) public benefits for certain classes of noncitizens. “Immigration Status Federalism” shines light on a different, and in some ways more fundamental, role that states play in shaping immigration law. In particular, Chen explores the underexamined ways in which state law—and state officials—affect persons’ immigration status in the first place. The article has a little bit of everything. Combining an exhaustive descriptive study, an impressive exercise in conceptual table-setting, and a sharp normative critique of existing doctrine, “Immigration Status Federalism” is an engrossing read and timely intervention.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.