The Politics of Immigration Across the United States: Every State a Border State? [1 ed.] 0367608197, 9780367608194

Citation preview

THE POLITICS OF IMMIGRATION ACROSS THE UNITED STATES

In recent years, Republicans and Democrats have drifted toward polarized immigration policy positions, forestalling congressional efforts at comprehensive reform. In this book, Gary M. Reich helps explain why some states have enacted punitive policies toward their immigrant populations, while others have stepped up efforts to consider all immigrants as de facto citizens. Reich argues that state policies reflect differing immigrant communities across states. In states where large-scale immigration was a recent phenomenon, immigrants became an electorally-enticing target of restrictionist advocates within the Republican Party. Conversely established immigrant communities steadily strengthened their ties to civic organizations and their role in Democratic electoral and legislative politics. Reich contends that these diverging demographic trends at the state level were central to the increasing partisan polarization surrounding immigration nationally. He concludes that immigration federalism at present suffers from an internal contradiction that proliferates conflict across all levels of government. As long as Congress is incapable of addressing the plight of unauthorized immigrants and establishing a consensus on immigration admissions, state policies inevitably expand legal uncertainty and partisan wrangling. The Politics of Immigration Across the United States will appeal to scholars and instructors in the fields of immigration policy, social policy, and state government and politics. The book will also encourage public policy practitioners to reflect critically on their work. Gary M. Reich is Associate Professor in the Department of Political Science at the University of Kansas where he teaches courses in public policy and comparative politics. His research on immigration policy has been published in peerreviewed journals such as the Policy Studies Journal, State Politics and Policy Quarterly, Research and Politics, and Publius: The Journal of Federalism. He also published widely in comparative politics, with work appearing in Comparative Political Studies, Political Research Quarterly, Electoral Studies, and Latin American Politics and Society.

BK-TandF-REICH_9780367608194-200341-FM.indd 1

26/11/20 7:24 PM

“Reich’s book moves beyond static, snapshot analyses of state-level immigration policy to investigate the role that partisanship but also citizen mobilization play in shaping state legislative responses to immigration over the past two decades. This is a consequential addition to our understanding not only of aggregate state policy but also of legislative decision-making in the immigration domain.” Alexandra Filindra, Associate Professor of Political Science & Psychology, University of Illinois at Chicago “This historically rich, politically insightful, and thoroughly informative book reminds us that states play a crucial role in immigration policies, but it also shows us how and why. Through a deep dive into party and immigration politics in Arizona, California, North Carolina, and Texas, Reich illuminates key forces at the state level that create distinct contexts for immigration. This is a significant contribution to immigration scholarship with important policy relevance. I highly recommend it.” Cecilia Menjívar, Dorothy L. Meier Endowed Chair in Social Equities, Department of Sociology University of California, Los Angeles

BK-TandF-REICH_9780367608194-200341-FM.indd 2

04/12/20 1:20 PM

THE POLITICS OF IMMIGRATION ACROSS THE UNITED STATES Every State a Border State?

Gary M. Reich

BK-TandF-REICH_9780367608194-200341-FM.indd 3

26/11/20 7:24 PM

First published 2021 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Gary M. Reich The right of Gary M. Reich to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this title has been requested ISBN: 978-0-367-60819-4 (hbk) ISBN: 978-0-367-60817-0 (pbk) ISBN: 978-1-003-11026-2 (ebk) Typeset in Bembo by KnowledgeWorks Global Ltd.

BK-TandF-REICH_9780367608194-200341-FM.indd 4

26/11/20 7:24 PM

In Memory of Norah Barillas Ariano and Raymond Stanley Reich

BK-TandF-REICH_9780367608194-200341-FM.indd 5

26/11/20 7:24 PM

BK-TandF-REICH_9780367608194-200341-FM.indd 6

26/11/20 7:24 PM

CONTENTS

List of Figures List of Tables Preface and Acknowledgments 1 The New Immigration Federalism:  The Great Divergence

viii ix x

1

2 Party, Polarization, and Place:  The Sources of State Immigrant Policies

37

3 States in the Changing Landscape of American Immigration

53

4 Policy Divergence in Immigrant-Rich States:  California and Texas

73

5 Grassroots Restriction in “New Gateway” States:  Arizona and North Carolina

119

6 “Dreamers” and “Illegals”:  Voting Behavior in State Legislatures

153

7 The Disequilibrium of Immigration Federalism

173

Index191

BK-TandF-REICH_9780367608194-200341-FM.indd 7

26/11/20 7:24 PM

LIST OF FIGURES

Figures 1.1 State government immigrant policy enactments, by policy area (2005–2019) 1.2 Estimates of undocumented immigrant population (1970–2017) 1.3 Immigrant Policy Inclusiveness, by state 6.1 Probability of Restrictive Vote, by Party and Latino/Asian Voting-Age Population

BK-TandF-REICH_9780367608194-200341-FM.indd 8

3 11 27 164

26/11/20 7:24 PM

LIST OF TABLES

Tables 1.1 1.2 1.3 3.1

Integrative State Immigrant Policies, as of 2019 21 Restrictive State Immigrant Policies, as of 2019 24 Unauthorized Immigrants and Mixed-Status Families 29 Summary of Immigrant Populations and Partisanship in California, Texas, Arizona, and North Carolina 65 4.1 Immigration-Related Laws and Resolutions in California, 2011–201788 4.2 Immigration-Related Public Opinion Polling in Texas, 2010–2011105 6.1 Restrictive Floor Votes, by Party and State Immigration Pattern157 6.2 Restrictive Floor Votes, In-State Tuition and “Sanctuary” Bills 161 6.A1 States and Floor Votes on Immigrant Policies, 2011–2018 168 6.A2 Probability of Restrictive Floor Vote, Multilevel Logistic Regressions170

BK-TandF-REICH_9780367608194-200341-FM.indd 9

26/11/20 7:24 PM

PREFACE AND ACKNOWLEDGMENTS

This book focuses on political encounters between immigrants and non-immigrants. It is therefore fitting that it represents the outgrowth of various border crossing encounters in my own life, both professional and personal. My academic training and published research in comparative politics—mostly related to Latin America—might make a project on US state politics seem incongruous, at least by the disciplinary conventions of political science. However, professional concerns organically altered the trajectory of my research agenda in ways that I could not have anticipated at the start of my academic career. Besides strengthening my love for the region’s culture, past research and travel in Latin America gave me an appreciation of the forces that induce millions of people to leave their homelands and become immigrants. Meanwhile, my teaching and advising duties at the University of Kansas transformed the boundaries of my research interests. Fittingly enough, my role as adviser to a talented undergraduate from Mexico, Alvar Ayala Mendoza, became my first foray into US state immigrant policies. Alvar and I co-authored an article in State Politics and Policy on the adoption of in-state tuition for undocumented students in Kansas; work which grew out of his undergraduate honors thesis. That article led me further into state politics and policy when my colleague and friend Jay Barth, then at Hendrix College in Arkansas, collaborated with me on work that we published in Policy Studies Journal and Publius: The Journal of Federalism. It speaks volumes to changing migration patterns that my first work on US immigration politics consisted of case studies of Kansas and Arkansas, two states that, like so many others, were transformed in recent decades by the growth of Latin American immigrant communities. The Latin American immigrant thread that weaves through my professional life is interlaced by a deeply personal strand. I am the son of an immigrant mother who left her native Guatemala in 1955, at the age of 19, to create a life in the United States. I am still in awe of the daring and initiative that fueled my mother’s decision to find her way in a new country at such a young age, at a time when few single women undertook such a journey by themselves. I have aimed for dispassionate

BK-TandF-REICH_9780367608194-200341-FM.indd 10

26/11/20 7:24 PM

Preface and Acknowledgments xi

analysis in the pages that follow, but must admit a personal bias: I have tremendous respect for the audacity and resilience that informs every immigrant journey, including my mother’s. This project developed with the support, encouragement, and critiques of numerous colleagues. I especially want to thank my University of Kansas colleagues, Don Haider-Markel, Dorothy Daley, Hannah Britton, Clay Webb, Christina Bejarano, John Pierce, and the Center for Migration Research at the University of Kansas and it first directors, Cecilia Menjívar and Victor Agadjanian. My work has also been improved by the feedback of numerous journal editors and conference panel discussants along the way, including Alexandra Filindra, John Dinan, Frederick Boehmke, Nancy Martorano Miller, and Richard Winters. I also benefitted from excellent research assistance along the way from Michael Scott, William Hatungimana, Brian Hanson, and Joshua Schukman. At Routledge Press, I have appreciated the support and encouragement of Senior Editor Natalja Mortensen, Editorial Assistant Charlie Baker, and the anonymous reviewers of this project. On a personal note, I cannot express enough gratitude to my husband and best friend, Keith Floyd. He has patiently listened to a litany of half-baked ideas and trifling grievances ever since my graduate school days. That’s many ideas and grievances ago. More importantly, I hope that Keith and Chucho—best dog ever—know how much I value their company. There’s been no better work break over the years than hanging out with the two of them on the porch of Free State Brewery. I began this project as both my mother and father became increasingly burdened with the afflictions that tend to accompany a long life. Neither of them lived to see this project completed, but no day goes by without me having at least one grateful thought for the people that they were and the home that they gave me and my brothers. That is why this book is dedicated to the memory of Norah Barillas Ariano and Raymond Stanley Reich. Thank you, Mom and Dad.

BK-TandF-REICH_9780367608194-200341-FM.indd 11

26/11/20 7:24 PM

BK-TandF-REICH_9780367608194-200341-FM.indd 12

26/11/20 7:24 PM

1 THE NEW IMMIGRATION FEDERALISM The Great Divergence

In June 2007, the moment for comprehensive immigration reform seemed to have finally arrived in Congress. After three failed attempts in as many years, a bill containing a mix of border security measures and a path to citizenship for millions of unauthorized immigrants reached the floor of the US Senate. The bipartisan group of senators that crafted the legislation counted with the backing of a Republican president, George W. Bush, the Democratic Senate Majority Leader, Harry Reid, and the Republican Senate minority whip, Trent Lott. However, the Senate bill died without ever receiving an up or down vote. Twice it failed to receive the 60 votes needed to end debate and move to a floor vote. Key to the bill’s failure was the unexpected lobbying of a grassroots antiimmigration movement. Lambasting the bill as amnesty for “illegal immigrants,” opponents from across the country flooded members of Congress with phone calls, e-mails, and online petitions.1 Republican Senate support dissipated in the process. Only 12 of 49 Republican senators voted to end debate, despite last-minute phone calls from the president asking for their support of the bill.2 The movement that helped kill comprehensive immigration reform in 2007 was notable for both its methods and its geographic reach. Its political tools were conservative talk radio, internet chat rooms, online petitions, and signature-gathering campaigns for ballot initiatives. In the early- to mid2000s, its presence altered Republican state party conventions and primaries, the outcome of ballot initiatives, and the tenor of state laws—and not just in a border state like California, where immigration was long a hot-button issue. The restrictionist movement inspired anti-immigration activism

BK-TandF-REICH_9780367608194-200341-Chp01.indd 1

28/11/20 3:45 PM

2  The New Immigration Federalism

in places like Alabama, Georgia, the Carolinas, Indiana, Pennsylvania, and Oklahoma. Appraising the geographic expansion of restrictionist fervor, the national field director for the anti-immigration Federation for American Immigration Reform (FAIR) waxed metaphorical, suggesting “Every state is now a border state.”3 During the same period, opposing groups of activists began mobilizing on behalf of policies that sought a broader inclusion of immigrants in American society. The pro-immigrant movement gathered strength, in part, as an urgent response to the legislative inroads of anti-immigration forces. In December 2005, the Republican-controlled US House of Representatives passed HR 4437, its own sweeping version of immigration reform that, among other things, created a new felony for assisting an unauthorized immigrant to remain in the country. HR 4437 would also die in the Senate, but not before spurring counterprotest marches in the spring of 2006 that involved over a million people across 200 cities—recruiting millions of voting-eligible Latinos immigrants into the electoral process. A common slogan appearing at the marches, “Today we march, tomorrow we vote,” spoke to its aspirations to unleash the clout of immigrant voters.4 By the mid-2000s, Latino and Asian immigrant voters increasingly become a key constituency with Democratic Party politics, in the process helping to enact pro-immigrant policies in places like California, Washington, Oregon, Illinois, and Connecticut. Cities with large immigrant communities (New York, Miami, Chicago, and Los Angeles) and several that housed major research universities (Ann Arbor, Michigan; Durham, North Carolina; Austin, Texas) moved to protect unauthorized immigrants from deportation by restricting their compliance with Immigration and Customs Enforcement (ICE) requests to detain immigrants. The mobilization of pro- and anti-immigrant movements in the mid-2000s heralded a period of intense immigrant policy activity among state governments. As in the divided US Congress, the politics of immigration intensified partisan fault lines, with Republicans moving toward more restrictionist positions and Democrats frequently embracing more inclusive laws. However, unlike Congress, where polarization engendered legislative paralysis, state governments produced a torrent of new laws, both restrictive and integrative. Between 2005 and 2007, the output of immigrant-related legislation and resolutions among the fifty states increased five-fold. After 2007, policy activity intensified, with state legislatures approving an average of 150 immigrantrelated laws through 2019. Data from the National Council of State Legislatures (shown in Figure 1.1) showed that this legislation affected a wide range of programs, services, and regulations falling under state control, including public education, health care, employment, law enforcement, and identification documents, among other topics.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 2

28/11/20 3:45 PM

The New Immigration Federalism 3

Today, state government is the entity that most directly affects the life opportunities available to US immigrants, including their ability to secure a job, a public education, access government-provided health care and welfare assistance, and even the likelihood of encountering federal immigration enforcement authorities. This book is about the politics of immigration across state government in the first two decades of the 21st century. It is about two radically different visions of the place of immigrants in the life of the nation, and the diverging set of state policies that arose from them. The restrictionist story told of a nation threatened by immigrants who, arriving in too many numbers and often without legal authorization, undermined common bonds of language, the rule of law, and culture while draining public coffers in the process. In this story, secure borders safeguard all that is valuable in American society, and each state serves as a rampart in its defense. Its activists saw themselves using state and local government as a “force multiplier” in reasserting the meaning of citizenship and the rule of law—a task that the federal government was unwilling or unable to undertake. By contrast, the pro-immigrant movement offered an account of immigrants performing work that Americans were unwilling or unable to perform in their homes, fields, meatpacking and manufacturing plants, hospitals, nursing homes, restaurants, hotels, construction sites, and even on foreign battlefields.5 In this narrative, the work that immigrants performed, the taxes they paid, the houses they

FIGURE 1.1 

State government immigrant policy enactments, by policy area (2005–2019)

Source: National Conference of State Legislatures. Immigration Laws and Current State Immigration Legislation, 31 March 2020, https://www.ncsl.org/research/immigration/statelaws-related-to-immigration-and-immigrants.aspx.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 3

04/12/20 1:22 PM

4  The New Immigration Federalism

built and bought, the businesses and families they started, spoke of a commitment to a nation that often went unrecognized. For the pro-immigrant movement, state and local politics became a venue by which to accord immigrants— including those lacking legal status—the rightful place in society that federal laws denied them. Over the past two decades, these competing narratives animated partisan polarization over immigration and diverging state policy approaches. Restrictive state policies aimed to limit or deny immigrants access to public services, employment, state licenses, and higher education while recruiting law enforcement agencies into immigration enforcement and removal operations conducted by federal authorities. As a rule, such policies prevailed where their advocates were able to use primary victories, state and local ballot initiatives, and party conventions to make restriction a Republican legislative priority. Integrative policies aimed to provide immigrants—both authorized and unauthorized— the same access to public services and economic opportunities available to citizen residents; they also frequently sought to shelter unauthorized immigrants from deportation efforts that did not stem from non-immigration related criminal activity. Integrative policy approaches generally reached their fullest expression in states where pro-immigrant movements found a receptive audience in Democratic electorates and Democratic-controlled state legislatures. In portraying the intersections of immigration, partisanship, and state politics this book makes three contributions to the study of state immigrant policy. First, I emphasize the important connection between place and partisanship. Political conflicts over immigration begin in the locales where immigrants settle. As argued in Chapter 3, pressures to integrate versus exclude immigrants reflect the differing political and economic forces that immigration unleashes in traditional immigrant destinations—communities where immigrants have a presence extending across several generations—versus “emerging gateways” where immigrants only arrived in large numbers beginning in the 1990s. The elaboration of this demographic context conveys a fuller landscape of the politics of immigration across states than can be conveyed by partisanship alone. Second, the ensuing chapters broaden the analytical focus beyond the study of enacted state policies, which predominate in existing research. State policy output represents the last stage in a much longer political sequence that shapes how immigration is framed as a political issue, which policy proposals become salient, which actors control legislative agendas, and how state institutions mediate legislative outcomes. State policy output, while important, offers an eclipsed view of the politics of immigration that leaves out earlier, formative stages in the policy process. These antecedent stages are the focus of case studies in Chapters 4 and 5, which incorporate the roles of grassroots movements, co-ethnic mobilization, intraparty conflict, and legislative institutions. Extending the causal chain

BK-TandF-REICH_9780367608194-200341-Chp01.indd 4

28/11/20 3:45 PM

The New Immigration Federalism 5

of policy conveys the more ambiguous and contested relationship between partisanship and policy, thereby explaining the wide variation in immigrant policies across states and across policy areas. Third, the analysis clarifies the role of ethnicity and race on state legislation. Existing theory argues that state immigrant policies represent the tension between a “white backlash” against immigrants versus growing shares of votingeligible immigrants. However, because cross-state empirical studies have largely relied on measures aggregated at the state level, analyses remain a step removed from the behavioral source of policy outcomes, namely, individual state legislators. Moreover, rival explanatory variables at the state level are too highly correlated with each other to allow accurate measurement of hypothesized effects. By examining the voting decisions of individual state legislators, Chapter 6 moves closer to the causal mechanisms within existing theory. The findings in that chapter suggest that larger white electorates and ideological conservatism exert a similar restrictionist pull on both Democratic and Republican state legislators. However, ideology, class, and immigrant voters make Democratic legislators reliable opponents of restriction, while having little effect on the voting orientation of Republican legislators. The remainder of this chapter provides an overview of the evolution of state government within US immigration policy and the array of immigrant policies that states have adopted over the past two decades, setting the stage for subsequent chapters. The ensuing section examines the rise of federal plenary powers over immigration in the late 19th century, which removed state authority over immigrant admissions and naturalization. However, I argue that state governments and state-based nativist movements retained an influential, albeit informal role within national policy, propelling the turn toward immigration restriction in the late 19th and early 20th century. The turn toward a more expansive immigration regime after 1965—with Congress’s passage of the Hart-Celler Act—created the framework within which state governments operate today. After 1996, as the US Congress increasingly receded from the policy stage, state governments began a period of intense policy activism that has become dubbed the “new immigration federalism.” After reviewing the evolution of state policy under the new immigration federalism, I argue that the federal government’s plenary authority over immigrant admissions and enforcement, in combination with the sustained presence of unauthorized immigrants, create a fundamental incoherence within immigration federalism. Regardless of whether states adopt inclusive or restrictive approaches, their policy intentions are thwarted by the defects of national policy and Congress’s inability to address them. As a result, some 11 million unauthorized immigrants, and a growing number of families comprised of both citizens and immigrants without legal status, live within the ongoing insecurity left by the protracted stalemate over national immigration policy.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 5

04/12/20 1:23 PM

6  The New Immigration Federalism

State Government in the Evolution of US Immigration Policy Aristide Zolberg argued that US immigration policy is marked by the tension between efforts to attract immigrants deemed “valuable” while preventing, or even ridding, the nation of those considered “undesirable.”6 The authority to distinguish “valuable” from “invaluable” immigrants was a prerogative of state governments in the first century of the republic. However, today the federal government’s complete authority of immigrant admissions and naturalization— its plenary power—is well established. The advent of immigration federalism in the late 1990s gave states enhanced policy authority over immigrants and became the basis for diverging state policies today. However, state policies must still operate within the bounds of federal plenary power, which, as I argue below, creates a fundamental contradiction for both integrative and restrictive state policies.

The Rise of Federal Plenary Power and Immigrant Restriction: 1875–1965 Beginning in the last quarter of the 19th century, the authority to determine which immigrants merit entry into the country and which are to be excluded came to rest exclusively with the US Congress. In that period, a series of Supreme Court cases and the establishment of a national immigration bureaucracy solidified the federal government’s “plenary powers” over immigrant admissions and naturalization. Federal sovereignty was so complete that, in the words of Peter J. Spiro, state power in the area was reduced to “a virtual nullity.” 7 The concentration of immigration authority in the federal government constituted a departure from the first century of the American republic. During what Gerald L. Neuman, calls the “lost century” of immigration law, regulation of immigration was the province of state government, operating under loose federal statutes. In 1790, the federal government established the five-year residency requirement for naturalization and restricted eligibility to free, white males. However, the details and execution of admission and naturalization rested with state governments. States generally focused their policy concerns on preventing the entry of immigrants likely to become public charges, including “paupers,” criminals, those judged mentally or physically disabled, and those suffering from contagious diseases.8 Rules for naturalization reflected both population needs and efforts at ethnic or racial exclusion. Sparsely populated states, for example, often made citizenship easily obtainable, but only for European settlers. For example, Texas made naturalization exceedingly difficult for its Mexican population, while facilitating citizenship for German, Czech, and French immigrants.9

BK-TandF-REICH_9780367608194-200341-Chp01.indd 6

01/12/20 5:24 PM

The New Immigration Federalism 7

State regulation of immigrant admissions went largely unimpeded until 1875, when, the US Supreme Court struck down a California law prohibiting the entry of “debauched” women in Chy Lung v. Freeman. The law in question was actually a pretext to deny entry to Chinese women, part of a complex of racist restrictions that California built to exclude Asian immigrants. The Court reasoned that the law undermined the federal government’s overriding interest in maintaining cordial relations with China, expressed in the Burlingame Treaty of 1875, which established mostfavored-nation trading status between the two nations and lifted restrictions on immigration from China. The decision established the principle that immigration regulation was an implied and exclusive power of the federal government, by way of its foreign policy powers.10 Chinese exclusion was also the issue that led the Supreme Court to establish the doctrine of federal plenary power. In 1889, Chae Chin Ping, a Chinese immigrant who had lived in the United States for twelve years, was denied readmission to the country upon returning from a visit to China. Ping had obtained a reentry certificate prior to leaving, but Congress changed the law while he was away, barring the readmission of even those Chinese immigrants holding the certificates. In rejecting Ping’s petition for re-entry (Chae Chin Ping v. United States), the Supreme Court argued that Congress’s most recent legislation was both final and sovereign, superseding any previous treaty or law.11 The exclusion of Chinese immigrants and the doctrine of plenary powers coincided with the creation of a federal infrastructure to regulate immigration. In 1882—the year that Congress barred Chinese laborers from entering the country and made all Chinese in the US ineligible for citizenship—the first federal bureaucracy regulating immigration was built; a Bureau of Immigration was added in 1891. However, the constitutional division of authority overlooks the informal role of state politics in shaping the trajectory of national immigration policy, even after federal plenary authority was established. Anti-immigrant movements at the state and congressional levels mutually reinforced each other. The law that banished Chinese immigrants like Chae Chin Ping typified this pattern. After 1848, in the wake of the Gold Rush-fueled acceleration of both white and Chinese settlement in western states, demand for labor increased in railroad construction, laundries, and domestic service. In the early 1850s, western states used land grants to attract Chinese immigrants, exclusively male, who filled many of these labor needs, as well as public coffers, via the taxes, license fees, and duties they paid.12 In the 1850s and 1860s, states continually augmented anti-Chinese regulations as Chinese immigration increased. State laws restricted economic opportunities available to Chinese immigrants, their ability to marry non-Chinese, and the entry of Chinese women immigrants. A foreign miners’ tax—originally

BK-TandF-REICH_9780367608194-200341-Chp01.indd 7

07/12/20 5:25 PM

8  The New Immigration Federalism

used to keep Latinos out of the gold mines—was extended to Chinese immigrants in 1852. In 1857, a plank was proposed at Oregon’s constitutional convention that banned Chinese laborers. Although it was unsuccessful, California and Oregon began levying special taxes and fees on Chinese miners and merchants.13 In 1862, the first Republican governor of California, Leland Stanford—whose business ventures employed hundreds of Chinese immigrants—vowed to suppress Chinese immigration while imposing a new “Police Tax” on all Chinese laborers.14 As immigration authority concentrated in the federal government, anti-Chinese restrictions made their way into congressional statutes. In 1875, Congress passed the Page Act, introduced by a Republican member of Congress from California, which used the pretext of preventing prostitution to effectively bar the immigration of Chinese women.15 In 1879, Congress prohibited the entry of more than 15 Chinese immigrants on any single vessel, a bill that was vetoed by President Rutherford B. Hayes. However, bipartisan support for restricting Chinese immigration grew, culminating in the passage of the Chinese Exclusion Act of 1882, which initiated a suspension of Chinese immigration that would endure until 1943. Restrictionist laws originating in the western states evolved into a national policy that, as Roger Daniels notes, initiated the restrictive turn in national policy that would last until the mid-20th century.16 The trajectory of Chinese exclusion ref lects a pattern common to state laws in subsequent eras. Initial efforts to attract immigrants—normally to f ill a need for labor—are followed by a backlash against the very same immigrants as they arrive in signif icant numbers. In the early 20th century, restrictionist efforts focused on immigrants from Southern and Eastern Europe, and Asia (particularly the Japanese), fusing negative racial stereotypes to fears that white Protestant citizens would lose economic and political superiority. The “threat” narrative adopted various frames. Sometimes, suspicion was trained on a presumed inability to assimilate into American society when newly arriving immigrants spoke a language other than English. In the 1910s, an “Americanization” movement gathered force in Congress and at the state level, especially after the outbreak of World War I. Arguing the importance of English to assimilation, the movement succeeded in getting 25 states to pass legislation making the use of English mandatory in schools.17 At other times, religious prejudice informed anti-immigration movements. Hearkening back to the rhetoric that catalyzed anti-Irish movements in the 1840s and 1850s, anti-Jewish and anti-Catholic sentiments were potent political forces in the 1910s, especially in the South. In 1916, Sidney Catts weaved antiCatholic rhetoric into an overtly racist platform that was successful in Florida’s 1916 gubernatorial campaign. Following his win, Catts persuaded the legislature

BK-TandF-REICH_9780367608194-200341-Chp01.indd 8

28/11/20 3:45 PM

The New Immigration Federalism 9

to pass anti-Catholic legislation. During the same era, an anti-immigrant slate of municipal candidates in Birmingham, Alabama won office and promptly dismissed all Catholic city employees, while a citizen-sponsored initiative restricting religious schooling passed in Oregon in 1922 (although later struck down by the Supreme Court in 1925).18 Racial prejudice also continued to fuel new anti-Asian measures, with Japanese immigrants becoming a focus of restrictionist movements on the west coast. The Asiatic League, formed in 1905, sought to extend the Chinese Exclusion Laws, and, succeeded in getting the San Francisco School Board to segregate Japanese schoolchildren.19 Alien Land Laws passed in California (1913), Washington (1921), and Oregon (1924) challenged federal policy by only permitting land ownership or leasing by citizens or non-Asian immigrants who declared an intent to naturalize.20 Restrictionist movements in Congress and the states operated as reinforcing linkages within the policy process. In 1917, Congress approved an English literacy test for immigrants over the age of 16 and defined an “Asiatic Barred Zone.” Japan was not included, but only because its government agreed to voluntarily limit immigration as part of a “Gentleman’s Agreement” signed with President Theodore Roosevelt in 1907. However, Japanese immigrants were officially barred from entry when Congress passed the Johnson-Reed Act of 1924. The law, also known as the Immigration Act of 1924, established nation-based quotas on immigrant admissions while barring the entry of immigrants not eligible for citizenship—which at that time included all Chinese and Japanese immigrants. Admission going forward was based on two percent of each nation’s foreignborn population in the US as recorded in the 1890 census. Turning the census clock back by over two decades in establishing quotas severely cut admissions for southern and eastern European countries, whose immigrant presence had grown rapidly after 1890.

The Post-1965 Era: A New Immigration Regime—and the Rise of Unauthorized Immigration The 1924 system of nation-based quotas began to be dismantled after World War II, but was not definitively ended until the 1965 passage of the Hart-Celler Act (formally, the Immigration and Nationality Act of 1965). A new immigration regime was constructed in which each country was assigned a fixed limit of 20,000 persons per year. However, immediate family members of US citizens (spouses, unmarried minor children, and parents) were exempted from the limits. The law also created a preference system for admissions that prioritized family members of US citizens. Over time, this feature of the law tended to reinforce immigration from the same countries: As one cohort of immigrants became naturalized or legal permanent residents, family members back home

BK-TandF-REICH_9780367608194-200341-Chp01.indd 9

28/11/20 3:45 PM

10  The New Immigration Federalism

sought entry under the preference system, a process sometimes referred to as “chain migration.” The result of the Hart-Celler Act was a rapid increase in immigration in the ensuing decades. Annual legal admissions of immigrants increased from a third of a million in the 1960s to more than 970,000 by the 1990s.21 Moreover, the changing countries of origin of new arrivals remade the demographic profile of the United States. Immigration from Europe fell, but immigration from Asian countries—previously restricted by the national quota system—rapidly expanded, as did immigration from Latin America. Five decades after passage of the Hart-Celler Act, the Asian population of the United States had grown more than six-fold (from less than one to six percent of the population). The Latino population grew 4.5 times larger, reaching 18 percent of all residents by 2015. Meanwhile, the non-Hispanic white population fell during the same period from 84 to 62 percent.22 The Hart-Celler Act unintentionally set in motion another process— the growth of unauthorized immigration. For the first time, countries in the Americas—which had been excluded from the national quota systems at the behest of agricultural interests in the southwest—were included in the annual entry caps.23 This change coincided with the end of the “Bracero” program in 1964, which had allowed the entry of millions of temporary guest workers from Mexico beginning in 1942. The limited number of family preference visas could not keep pace with the growing demand for entry from relatives of previously arrived immigrants. The supply of entry visas ceased to reflect the combined pull of family unification, employers’ growing demand for immigrant labor, and the “push” factor of political violence and lack of economic opportunity in immigrants’ home countries. Unauthorized entries across the US southern border and visa overstays began a rapid ascent after 1965. Given its geographical proximity, Latin America (principally Mexico but also El Salvador, Guatemala, and Hondurans) became the principal source of unauthorized immigrants; unauthorized Asian immigrants (from the Philippines, China, and Korea) also represented a sizable share. As Figure 1.2 shows, in 1975, unauthorized immigrants were approximately .5 percent of the United States population. Three decades later, there was an eight-fold increase, with 12 million unauthorized immigrants in the country, nearly four percent of the US population. While declining in the wake of the Great Recession, the unauthorized immigrant population stabilized at around 11 million individuals by the 2010s. Congress attempted to address the issue in 1986. The Immigration Reform and Control Act of 1986 (IRCA) was a bipartisan effort to simultaneously address the status of long-term unauthorized immigrants residing in the country while ending the pull of employment by outlawing the hiring or recruitment of any non-citizen lacking legal authorization. Unauthorized immigrants who had

BK-TandF-REICH_9780367608194-200341-Chp01.indd 10

28/11/20 3:46 PM

The New Immigration Federalism 11

FIGURE 1.2 

Estimates of undocumented immigrant population (1970–2017)

continuously resided in the country before 1982 were made eligible for a naturalization process. Meanwhile, the law required employers to begin verifying the employment eligibility of all new hires (via examination of a passport, birth certificate, social security card, or alien documentation papers) and set graduated civil and criminal penalties for repeated violations.24 However, the 1986 reform did not yield the transformations its designers had envisioned. Its most significant outcome was that approximately three million unauthorized immigrants were granted legal status. Some evidence suggested that illegal border crossings slowed in the first three years after passage, but they picked up again after 1989. The new “I-9” employee verification form proved to be a weak deterrent to hiring applicants without legal status. The verification system was undermined by the widespread use of falsified identity documents by applicants, employer use of subcontractors to evade the system, the lack of federal inspectors to enforce the law, and employers’ disinterest in ensuring the law’s effectiveness.25 By the early 1990s, unauthorized immigration accelerated again. As the shortcomings of the IRCA became apparent, demands for restriction accelerated. Polling data suggested that most Americans saw immigration as a threat to the national interest and favored tougher enforcement measures against illegal immigration.26 Media accounts and popular books presented “Latino threat” narratives that likened Latin American immigrants to an invading force.27 In 1994, 59 percent of California’s voters approved a sweeping anti-immigrant ballot initiative, Proposition 187. That same year, midterm elections brought Republicans majorities to both houses of Congress, many of whose members ran on anti-immigrant platforms.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 11

28/11/20 3:46 PM

12  The New Immigration Federalism

The political moment seemed right for immigration restriction. Yet, Congress largely left the Hart-Celler framework intact, and, proved incapable or unwilling to crack down on employers’ access to unauthorized immigrant labor through more effective employer sanctions or mass deportations. Increased apprehensions along California's border with Mexico border simply shifted unauthorized entries eastward, where immigrants attempted an often deadly trek across the Sonoran desert into Arizona. In Daniel Tichenor’s words, the 1990s decade demonstrated that “the policy impact of modern restrictionists has been remarkably meager.”28 The problem for restrictionists was that in the post-1965 era policy interests became realigned—both within and across the parties—in a manner that favored the status quo. The causes were varied. Immigrant-employing businesses resisted policies that interrupted their labor supply. Unions began to see immigrants as a new source of recruitment, rather than a threat to their members’ wages or jobs. A growing cohort of voting-eligible immigrants and children of voting-eligible immigrants became a core Democratic constituency. Pro-immigrant advocacy groups became effective at political lobbying and litigation. The result was a coalition of “strange bedfellows” across parties that insulated legislative politics from restrictionist pressure.29 At the same time, the pro-immigration consensus had limits: Republicans and most Democrats in the 1990s largely accepted the terms of a policy debate that framed illegal immigration as an economic, fiscal, and national security threat. Indeed, Bill Clinton forcefully articulated the case against unauthorized immigrants in his 1995 State of the Union address: All Americans, not only in the states most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers. That’s why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens… We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.30 Clinton’s view reflected a bipartisan policy equilibrium that emerged in Congress by the mid-1990s. A coalition of immigrant-accommodating Democrats and Republicans sustained the framework of the Hart-Celler Act against an energized group of Republicans who were pulling their party in a restrictionist direction. However, the commitment to the ideal of a “nation of immigrants”

BK-TandF-REICH_9780367608194-200341-Chp01.indd 12

28/11/20 3:46 PM

The New Immigration Federalism 13

also entailed relegating “illegal aliens” to a subclass deserving punitive policy responses, including stricter border enforcement, interior arrest and removal operations, and cutting access to public services. There was an inherent contradiction in the mainstream consensus. Illegal immigration was driven by the same labor markets, economic opportunities, coethnic communities, and families that attracted the legal entrants who comprised the “nation of immigrants.” In the coming decades, this understanding crystallized into an argument on the right that restriction should be applied to both legal and illegal immigration, and across all levels of government. Restrictionist advocates began to focus on family unification and “chain migration” as fundamental flaws within the Hart-Celler framework. Their rhetoric increasingly portrayed both authorized and unauthorized immigrants as manipulative, perpetuating “chain migration” through unauthorized entry, birthright citizenship, and “anchor babies,” the pejorative applied to US-born citizens whose parents lacked legal immigration status.31 On the left, by contrast, more began to view the stigmatization of unauthorized immigrants as problematic, both politically and morally. Growing numbers of Asian and Latino citizen voters were also the children or siblings of family members who lacked legal immigration status. The ranks of “illegal aliens” increasingly included youth coming of age in the only country they knew, which nonetheless denied them recognition as legal residents or a viable means of attaining citizenship. This latter issue could even generate a measure of bipartisan agreement. In 2001, Senators Richard Durbin (D-IL) and Orrin Hatch (R-UT) introduced the Development, Relief, and Education for Minors (DREAM) Act—previously introduced in a House version by Luís Gutierrez (D-IL)—which offered legal residency and employment eligibility to a segment of unauthorized youth brought to the country as minors. While the DREAM Act continued to languish in Congress, the term “Dreamers” became a sympathetic designation for immigrants previously impugned by the “illegal alien” label. Moreover, the declining fortunes of the Republican Party in California after 1994 suggested anti-immigrant rhetoric was a losing electoral strategy as voting-eligible immigrants became a larger share of the electorate. Diverging responses to the contradictions in US immigration policy set in motion increasing partisan polarization in the 2000s. For Republicans, the anti-immigration message became an enticing electoral force based on identity politics, drawing non-immigrant, white voters to the party while increasingly repelling immigrant voters. The party’s pro-immigrant wing found itself increasingly on the defensive. Democrats, by contrast, increasingly embraced “a path to citizenship” for undocumented immigrants and questioned the morality of immigration enforcement and removal operations. As the distance between partisan poles widened, the prospects for congressional reform efforts grew narrower in the 2000s.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 13

28/11/20 3:46 PM

14  The New Immigration Federalism

The New Immigration Federalism (1996–present) In a context of policy stasis, however, a new policy venue emerged—state government. In the late 1990s, Congress afforded states new discretionary authority to align policies with their preferences to integrate or restrict immigrants. The “new immigration federalism” has most often been applied to immigration enforcement duties granted by the federal government to state and local authorities after 1996. However, the term encompasses both increased integrative and restrictive policy authority delegated to states in the last two decades, largely as a result of two 1996 reforms passed by Congress: The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).32 Both immigration and welfare reform bills were products of the “Republican Revolution” of 1994—although both were signed into law by Bill Clinton—and reflected the new majority’s agenda of scaling back means-tested welfare programs, devolving policy authority to state and local governments, and restricting unauthorized immigration. The effects of immigration federalism on state policy activity, and the implications for immigrant quality of life, were especially noteworthy in six policy areas: Access to federal welfare programs, state participation in immigration law enforcement, compliance with immigration enforcement operations, access to higher education, employer immigration verification programs, and the granting of state driver’s licenses.

Welfare Reform The 1996 federal welfare reforms bridged all of the priorities of the new Republican legislative majority. In addition to giving states increased autonomy over redesigned federal welfare programs, PRWORA reduced the period of eligibility for the programs, tied benefits to efforts to secure employment, and restricted immigrant eligibility. The new federal guidelines made all immigrants (excluding refugees and asylees) ineligible for Temporary Assistance for Needy Families (TANF) and the Supplemental Nutritional Assistance Program (SNAP) during their first five years of in-country residency. After the five-year waiting period, states were only required to extend eligibility to legal permanent residents with more than forty-qualifying quarters of work. Unauthorized immigrants were made permanently ineligible for both programs. In the ensuing years, immigrant eligibility for TANF and SNAP began to vary widely from state to state, with some adhering to the minimum standards required under federal law and others extending coverage. State standards widened further after passage of the Affordable Care Act in 2009, which allowed states to cover select groups of immigrants still within the five-year period of ineligibility with Medicaid and the Children’s Health Insurance Program

BK-TandF-REICH_9780367608194-200341-Chp01.indd 14

28/11/20 3:46 PM

The New Immigration Federalism 15

(CHIP) funds. An even more select group of six states (California, Washington, Connecticut, Illinois, New York, and Massachusetts) use their own funds to provide limited health care services to some unauthorized immigrants (who remain ineligible for all forms of federal assistance).

Law Enforcement Enhanced immigration enforcement capabilities granted by immigration reform were also a source of diverging state policies—and constitutional disputes with the federal government. Before 1996, states had no authority to arrest or detain immigrants solely for suspected violations of federal immigration laws. However, the IIRIRA added a new enforcement option to the Immigration and Nationality Act—Section 287(g)—which trained state and local officials to participate in apprehending and detaining unauthorized immigrants. Supervision of the program was placed with the Attorney General (after 2003, to the director of the Department of Homeland Security). The first 287-g “Memoranda of Agreement” (MOA) was not signed until 2002, but after that date, the program became more popular. Between 2002 and 2012 about 72 agreements were signed with local, county, and state governments across the country. However, the 287-(g) program also blurred the line between federal versus state authority. As Michele Waslin notes, under the George W. Bush administration, the Justice Department interpreted the law as giving states authority to not only enforce criminal violations of immigration, but civil violations as well, previously an exclusively federal prerogative.33 Some state and local authorities unilaterally broadened this authority, enacting immigration enforcement measures independently of the 287-(g) program. Between 2006 and 2011, ten states passed measures empowering state and local law enforcement to investigate the immigration status of detained individuals when they had reasonable suspicion that the person was in the country illegally. Such state enforcement laws became among the most feared in immigrant communities, entailing the possibility that any encounter with local law enforcement could lead to arrest, deportation, and family separation. They also became the source of numerous lawsuits alleging constitutional violations of due process and equal protection. Arizona’s SB 1070, enacted in 2010, illustrated the controversial nature of state efforts to assert immigration enforcement prerogatives. Law enforcement officials were mandated to investigate the immigration status of all detained individuals, allowed to arrest suspected unauthorized immigrants without a warrant, and lack of proper immigrant documentation or applying for employment without such documentation became state crimes. The Justice Department sued to block implementation of SB 1070 on grounds that federal authority preempted such state enforcement measures. In June 2012, the US Supreme Court struck down the law’s provision for warrantless arrests as well as the creation of state crimes

BK-TandF-REICH_9780367608194-200341-Chp01.indd 15

28/11/20 3:46 PM

16  The New Immigration Federalism

for federal offenses. However, the Court upheld the mandate that law enforcement officials verify the immigration status of detained or arrested persons.34 The majority opinion in Arizona v. United States, written by Justice Anthony Kennedy, did not foreclose “other preemption and constitutional challenges” to SB 1070 based on its implementation. 35 The danger in such laws was that an officer’s “reasonable suspicion” that an individual lacked legal immigration status easily translated to racially-biased policing. Indeed, Arizona’s get-tough approach amply demonstrated this danger. As detailed in Chapter 5, in the process of netting tens of thousands of arrests of unauthorized immigrants, Maricopa County sheriff Joe Arpaio and his deputies indiscriminately detained anyone who appeared to be Latino. Arpaio’s actions generated costly lawsuits for the county, eventually resulting in a federal judge halting his actions (and an eventual criminal conviction for Arpaio for defying that same order). With the exception of North Carolina, Tennessee, and Texas, most of the states that implemented SB 1070-style laws—including Arizona—halted “reasonable suspicion” immigration checks as settlement terms in lawsuits brought by immigrant rights and civil liberties groups. 36 After 2012, the Obama administration also halted 287(g) “task forces” that empowered local law enforcement to apprehend unauthorized immigrants, although it continued agreements with state, county, and local jails to detain immigrants at the request of Immigration and Customs Enforcement (ICE). However, the program was ramped up again under the Trump administration: As of July 2020, the administration had established 139 MOA in 21 states, including 65 task force agreements. Three states accounted for 85 of the 287(g) partnerships created the Trump administration: Florida (48), Texas (25), and North Carolina (12). 37

“Sanctuary Cities” and Cooperation with ICE The term “sanctuary city” is a loosely applied re-appropriation of a term from the 1980s, applied to local authorities that gave de facto asylum status to Central American immigrants who risked being deported to their civil war-ravaged home countries. In the 2000s, the term began to be applied to city, county, state governments that, in the absence of a criminal record or probable criminal offense, declined to accede to ICE requests to detain individuals solely for suspected civil infractions of federal immigration laws. By the early 2000s, hundreds of cities or counties stopped cooperating with ICE “detainer” requests. Their concern was that prolonging the detention of individuals who had been granted parole or were not being charged for a crime violated the due process provisions of the US Constitution. California, Illinois, New York, and Washington implemented such policies statewide.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 16

28/11/20 3:46 PM

The New Immigration Federalism 17

State and local compliance with ICE detainer requests became a particularly contentious partisan issue within immigration federalism during the Trump administration. The president made the banning of “sanctuary cities” central to his restrictionist agenda, arguing that failure to accede to detainer requests violated federal law. In January 2017, Trump issued an executive order that federal funds (“except as mandated by law”) be withheld from any jurisdiction deemed a sanctuary city by the Justice Department. 38 California responded with the California Values Act of 2017, which defied the administration by preventing state and local authorities from transferring individuals to federal immigration authorities without a warrant, a judge’s finding of probable cause, or a previous conviction for a list of specified crimes. The conflict over whether state officials were constitutionally compelled to cooperate with ICE detainer requests—and whether the federal government could punish them on the failure to do so—became a subject of several federal court cases. Meanwhile, ten other states, most in the South, passed “anti-sanctuary” laws mandating state and local compliance with ICE detainer and information requests (Alabama, Florida, Georgia, Iowa, Indiana, Georgia, Mississippi, North Carolina, Tennessee, and Texas).

Higher Education In striking down a Texas law that barred unauthorized immigrants from public schools, the Supreme Court ruled in 1982 that states had no legitimate public interest in denying an elementary or secondary education to children on the basis of their immigration status.39 The ruling in Plyler v. Doe left unaddressed its applicability to public post-secondary education, an issue that became increasingly pertinent as more unauthorized students began completing secondary education: By 2016, approximately 98,000 students lacking legal immigration status were graduating annually from US high schools.40 Section 505 of the IIRIRA barred states from conferring any post-secondary educational benefit to unauthorized immigrants on the basis of their state residency, unless such benefit was also given to non-residents. As a result, some states began passing laws that awarded in-state tuition status to unauthorized immigrants on the basis of attendance and graduation from a state high school, rather than state residency. Texas and California were the first to pass such legislation in 2001; 20 states had extended this benefit by 2019. In some states, such as Oklahoma and Hawaii, state university boards of regents allowed for in-state tuition for undocumented students, even though no such state legislation existed. By contrast, states pursuing a restrictionist policy course—such as Arizona, Alabama, Georgia, and Indiana—approved laws prohibiting in-state status to all unauthorized immigrants attending public post-secondary institutions in states.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 17

28/11/20 3:46 PM

18  The New Immigration Federalism

Verification of Employee Immigration Status/Employer Sanctions The new immigration federalism also created differing state requirements regarding employer verification of employee immigration status. The 1986 IRCA provided for civil and criminal penalties for hiring immigrants not authorized to work in the United States, which subsequently (under the IIRIRA) led to a federal pilot program for employers to verify the employment eligibility of their employees. In 2004, an internet-based version of this program, “E-Verify,” became available; in 2007 the program was placed under the direction of the Department of Homeland Security. Use of E-Verify is mandated for federal contractors and vendors, but is otherwise, voluntary. However, in 2007 Arizona passed the Legal Arizona Workers Act, which required the use of E-Verify for all state employers and created fines and possible suspension of business licenses for states that knowingly hired unauthorized immigrants. The law was challenged in federal court by the Obama administration on the grounds that it preempted the IRCA, which had stipulated that states not impose sanctions on employers for hiring unauthorized immigrants. In this instance, Arizona emerged victorious, with the Supreme Court ruling that federal law did not preempt the state’s mandated use of E-Verify or imposition of penalties.41 However, even restrictive states have hesitated to mandate the use of E-Verify for private-sector employers: Only nine states required the use of E-Verify for private state employers as of 2019. As discussed in the cases of Texas (Chapter 4) and North Carolina (Chapter 5), most states with private sector E-Verify mandates have exempted economic sectors heavily reliant on immigrant labor (especially agriculture) or only apply the mandate to private sector firms working under state contracts. By contrast, other states limited or even banned the use of E-Verify. In 2007, Illinois outlawed enrollment in E-Verify for all Illinois employers until the federal database was made more accurate. However, the federal government sued the state before the law could take effect and emerged victorious in federal court. California took a slightly different tack. In 2012, the state forbade any authority in the state from mandating employer use of E-Verify or any electronic verification system, except where required by federal law. In 2016, the state imposed new restrictions on the use of E-Verify, forbidding employers from using it for current employees or for job applicants before an offer of employment had been made. The state also passed the “Immigrant Worker Protection Act” in 2017, which prohibited immigration raids in workplaces without a judicial warrant and prevented employers from reverifying the employment eligibility of workers.

Driver’s Licenses Although the issuing of driver’s licenses is indisputably a prerogative of state government, national security concerns and congressional legislation have conditioned state policies. In the years before the terrorist attacks of 11 September 2001,

BK-TandF-REICH_9780367608194-200341-Chp01.indd 18

28/11/20 3:46 PM

The New Immigration Federalism 19

at least 15 states began removing restrictions that prevented unauthorized immigrants from obtaining a driver’s license.42 Their actions were facilitated when, in 1999, Congress repealed a section of the IIRIRA that barred federal agencies from accepting for identification purposes state-issued identification cards that did not have a Social Security number. As a result, some states began to accept alternative forms of identification for driver’s licenses applications, especially identification cards issued by foreign consulates, such as Mexico’s Matrícula Consular de Alta Seguridad. However, in the years after 2001 national security concerns increasingly tightened standards for federally-accepted forms of identification. At the same time, anti-immigrant movements made driver’s licenses for undocumented immigrants politically controversial. Most states that had previously issued driver’s licenses to unauthorized immigrants rescinded such policies and established new policies that made licenses unobtainable for state residents lacking legal immigration status. Arizona did this directly, via legislation; other states did not enact legislation but issued directives that required proof of legal residency in the country as a condition for obtaining a license. However, states began reversing direction after the Obama administration instituted the Deferred Action for Childhood Arrivals (DACA) order in 2012. DACA allowed unauthorized immigrants younger than 31 who were brought to the country before the age of sixteen, and who had lived in the country since 2007, to apply for a renewable, two-year permit to legally work or study in the United States. In the wake of DACA, most states began issuing driver’s licenses or special driving privileges to DACA recipients and other immigrants with temporary protection from removal status. Arizona and Nebraska refused to issue driver’s licenses to DACA recipients but, after several years of legal action, relented in 2019. As of 2019, 18 states had begun issuing or made provisions to begin issuing driver’s licenses or driving privileges to undocumented immigrants. Some of the new licenses have stipulations that apply specifically to undocumented immigrants. Utah issues a one-year, renewable “driving privilege” card but does not allow it to be used for identification purposes. Connecticut’s license specifies that it is only to be used for driving and applicants must attest that they will apply for legal status as soon as they are eligible.43 In addition, for any state-issued ID to be accepted by federal agencies, the REAL ID Act of 2005 requires applicants to provide evidence of their legal presence in the country. Under the Act, licenses issued to anyone lacking such evidence must indicate that they are not REAL ID-conforming and cannot be accepted by any federal agency. Driver’s licenses raise concerns for unauthorized immigrants about the sharing of the personal information contained in driver’s license records. As discussed in Chapter 7, information from state motor vehicle records generally becomes integrated into databases accessible to federal authorities; motor vehicle records are

BK-TandF-REICH_9780367608194-200341-Chp01.indd 19

01/12/20 5:25 PM

20  The New Immigration Federalism

the primary source used by federal law enforcement authorities to locate individuals. Due to the unique markings on licenses issued to immigrants (required of licenses that do not meet REAL ID standards), an individual’s immigration status may potentially be revealed by some state licenses. Even where states, such as California, Washington, and Oregon, have attempted to limit the personal information accessible by federal authorities, commercially available facial recognition and license plate reading technology increasingly provide alternative methods for federal immigration authorities to link individuals with personal information in state databases (a topic discussed in Chapter 7). In addition, ICE officials have also informally contacted state DMV officials via e-mail or telephone to obtain personal information from state records.44

Patterns of State Immigrant Policies Today Policy differences across the most commonly adopted state immigrant policies are summarized in Tables 1.1 and 1.2, which illustrate patterns of policy adoptions across all 50 states. The tables include the most commonly adopted integrative (Table 1.1) and restrictive state measures (Table 1.2) that most affect immigrants’ ability to secure employment, a higher education, health care, and evade deportation proceedings. The seven integrative policies in Table 1.1 include: The granting of in-state tuition status and/or eligibility for state financial aid for unauthorized students pursuing a college education; the ability to secure a state driver’s license or identification card; immigrant eligibility for federal or state health care programs; and statewide limits on complying with ICE detainer requests. Table 1.1 presents restrictive policies that, by contrast, seek to exclude legal immigrants from health care programs to the maximum extent allowable under federal law and that seek to bar unauthorized immigrants from employment or public postsecondary education. The most widely adopted inclusive immigrant policies are those that are funded with federal dollars. CHIP and Medicaid coverage for immigrants with less than five years of residency have been adopted by 36 states as of 2019; coverage for pregnant women under the same programs was extended in 23 states. By contrast, the least commonly adopted policy is the use of state funds for unauthorized immigrant health care, with only six states providing such services. Likewise, only eight states make public financial aid available for undocumented college students, although 20 now have provisions that provide in-state tuition status to “Dreamers.” State “sanctuary” laws that limit cooperation with federal immigration enforcement are also rare (eight state adoptions). Across all states, the most accommodating states—those that have adopted all seven accommodating policies—are California, and Washington, followed closely, by Illinois, Connecticut, and New York.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 20

28/11/20 3:46 PM

BK-TandF-REICH_9780367608194-200341-Chp01.indd 21

California Washington Connecticut Illinois New York Hawaii Massachusetts Minnesota New Mexico Oregon Colorado Maryland New Jersey Vermont Delaware

X* X X X X X

X X X X X X* X X X

X

X

X X

State Financial Aid for In-State Unauthorized Tuition for Undocumented Immigrant Students Students X X X X X X X X X X X X X X X X

X X X X X

State-funded Program for Select Driver’s Unauthorized Licenses for Unauthorized Immigrant Health Care Immigrants

TABLE 1.1  Integrative State Immigrant Policies, as of 2019

X X X X X X X X X X X X X X X

Medicaid or CHIP Coverage for LawfullyResiding Immigrants without 5-year Wait

X X X X X

X X X X X

X X X

Medicaid or CHIP Coverage for LawfullyResiding Pregnant Women without 5-year Wait

X

X

X

X X X X X

7 7 6 6 6 5 5 5 5 5 4 4 4 4 3 (continued)

Limitations on InformationSharing and/or TOTAL Detainer INTEGRATIVE Requests from ICE POLICIES

The New Immigration Federalism 21

28/11/20 3:46 PM

BK-TandF-REICH_9780367608194-200341-Chp01.indd 22

Nebraska Pennsylvania Texas Utah Arkansas Florida Kentucky Maine Michigan Nevada North Carolina Ohio Oklahoma Rhode Island

X* X*

X

X

X X

X X

State Financial Aid for In-State Unauthorized Tuition for Undocumented Immigrant Students Students

X

X+

X

State-funded Program for Select Driver’s Unauthorized Licenses for Unauthorized Immigrant Health Care Immigrants

TABLE 1.1  Integrative State Immigrant Policies, as of 2019 (Continued)

X X X X X X X X X X X X X X

Medicaid or CHIP Coverage for LawfullyResiding Immigrants without 5-year Wait

X X

X

X

X X

Medicaid or CHIP Coverage for LawfullyResiding Pregnant Women without 5-year Wait 3 3 3 3 2 2 2 2 2 2 2 2 2 2 (continued)

Limitations on InformationSharing and/or Detainer TOTAL Requests INTEGRATIVE from ICE POLICIES

22  The New Immigration Federalism

28/11/20 3:46 PM

BK-TandF-REICH_9780367608194-200341-Chp01.indd 23

20

X

8

18

6

State-funded Program for Select Driver’s Unauthorized Licenses for Unauthorized Immigrant Health Care Immigrants

36

X X

X X X X X X

Medicaid or CHIP Coverage for LawfullyResiding Immigrants without 5-year Wait

X 23

X X X X

Medicaid or CHIP Coverage for LawfullyResiding Pregnant Women without 5-year Wait

8

2 2 2 2 1 1 1 1 1 1

Limitations on InformationSharing and/or Detainer TOTAL Requests INTEGRATIVE from ICE POLICIES

*Policy approved by state university Board of Regents (not state legislature)

+Allows for a one-year driving privilege card

States with none of the above policies: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee,

South Carolina Virginia West Virginia Wisconsin Alaska Iowa Kansas Montana New Hampshire Wyoming TOTAL

State Financial Aid for In-State Unauthorized Tuition for Undocumented Immigrant Students Students

TABLE 1.1  Integrative State Immigrant Policies, as of 2019 (Continued)

The New Immigration Federalism 23

28/11/20 3:46 PM

Alabama Arizona Georgia Indiana Mississippi Missouri Tennessee North Carolina South Carolina Arkansas Florida Idaho Louisiana South Dakota Utah Colorado Iowa Kansas North Dakota Oklahoma Texas Virginia Alaska California

BK-TandF-REICH_9780367608194-200341-Chp01.indd 24

X

X

X X X X X X X X X X X

Mandatory Immigration Checks or Compliance with ICE Detainer Requests

X

X

X X X X

Ban on In-State Tuition

X X X

X X X

X X X X X X X

No Immigrant Healthcare Spending Beyond Federally-Mandated Minimum

TABLE 1.2  Restrictive State Immigrant Policies, as of 2019

X X X

X X

X X X X X X X X X X X X X

Required Use of E-Verify for Most Public Sector Hires

X

X

X X X

X

X X X

Required Use of E-Verify for Private Sector Hires

X X X

X X X X X X X

X X X X X X X X X X X X

English as Official State Language+

(continued)

6 6 6 5 5 5 5 4 4 3 3 3 3 3 3 2 2 2 2 2 2 2 1 1

TOTAL RESTRICTIVE POLICIES

24  The New Immigration Federalism

28/11/20 3:46 PM

BK-TandF-REICH_9780367608194-200341-Chp01.indd 25

13

6

Ban on In-State Tuition

13

No Immigrant Healthcare Spending Beyond Federally-Mandated Minimum

20

X

X

Required Use of E-Verify for Most Public Sector Hires

9

Required Use of E-Verify for Private Sector Hires

X X 27

X

X X

English as Official State Language+ 1 1 1 1 1 1 1

TOTAL RESTRICTIVE POLICIES

Official English: Lewis, Direct Democracy and Minority Rights

In-state Tuition: NCSL, “Tuition Benefits for Immigrants.”

Driver’s Licenses: NCSL, “States Offering Driver’s Licenses to Immigrants,” https://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-toimmigrants.aspx

Mandatory Immigration Compliance/Checks: National Immigration Law Center 2014

Medicaid and CHIP eligibility: Brooks, et al. “Medicaid and CHIP Eligibility,”

Sources for Tables 1.1 and 1.2:

+Hawaii, Louisiana, Illinois, Nebraska, and Massachusetts have official English laws, but these reflect circumstances unrelated to contemporary immigration and the “Official English” movement that began in 1981 (See Lewis, 2013: 31).

States with none of the above policies: Alaska, Connecticut, Delaware, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island,Vermont, Washington, West Virginia, Wisconsin, Wyoming.

Kentucky Montana Nebraska New Hampshire Pennsylvania West Virginia Wyoming TOTAL

Mandatory Immigration Checks or Compliance with ICE Detainer Requests

TABLE 1.2  Restrictive State Immigrant Policies, as of 2019 (Continued)

The New Immigration Federalism 25

28/11/20 3:46 PM

26  The New Immigration Federalism

At the other end of the policy spectrum, the most common restrictive policy is the most symbolic, namely, the adoption of English as an official state language (adopted by 27 states), followed by the mandatory use of the E-Verify system for public-sector agencies and companies on state contracts (20 states). However, laws mandating private sector use of E-Verify are rare (nine state adoptions), as are outright bans on in-state tuition for undocumented post-secondary students (six state adoptions). Thirteen states have rejected federal funding to expand immigrant eligibility for Medicare and CHIP; many of those states are also among the 13 that mandate local and county compliance with federal immigration enforcement authorities. As of 2019, the most restrictive states in the country were Arizona, Alabama, and Georgia, which had adopted all six restrictive policies in Table 1.2, followed by Indiana, Mississippi, Missouri, and Tennessee (five adopted policies). An interesting feature of the policy adoptions in Tables 1.1 and 1.2 is that of states that combine multiple restrictive and integrative immigrant policies. Arkansas, Colorado, Florida, North Carolina, South Carolina, Texas, and Utah have more than one integrative policy combined with more than one restrictive policy. These combinations suggest policies that work at cross-purposes with each other. For example, while Texas and Utah have passed a state “Dream Act” granting in-state status to undocumented high school students at public colleges and universities, Texas does not permit unauthorized immigrants to obtain a driver’s license or work for any state agency or under a state contract. In Utah, unauthorized immigrants can obtain driving privileges and obtain instate tuition status at public colleges but are barred from public or private sector employment. At present, the ability of undocumented students to work or drive in Texas and Utah depends on the continuation of the Deferred Action for Childhood Arrivals program, whose fate is still uncertain in the face of attempts by the Trump administration to terminate it. In order to compare the overall balance of restrictive and inclusive policies across states, the map in Figure 1.3 compares the 50 states in terms of their degree of immigrant policy inclusiveness. States are categorized into five quintiles from most to least inclusive based on the difference between integrative policy adoptions in Table 1.1 and restrictive policies in Table 1.2. The pattern of scores suggests a strong regional pattern. The most restrictive states are concentrated in the South, although some midwestern states (Indiana, Missouri) and western states (Arizona, North Dakota, South Dakota) are also highly restrictive. By contrast, integrative states are concentrated on the west coast (California, Washington, Oregon, Hawaii) and in the northeast (New York, Connecticut, Massachusetts), although New Mexico, Illinois, and Minnesota feature highly integrative policies. The geographic distribution of state policies suggests the important role played by historical patterns of immigration. In general,

BK-TandF-REICH_9780367608194-200341-Chp01.indd 26

28/11/20 3:46 PM

The New Immigration Federalism 27

FIGURE 1.3 

Immigrant Policy Inclusiveness, by state.

integrative policies are more prevalent in states that have the largest immigrant populations and have long been destinations for immigrants arriving in the United States. The most restrictive policies have been adopted in states that had small immigrant populations until the 1990s but experienced the highest immigrant growth rates in the country in the subsequent two decades. As argued in Chapter 3, these differing historical patterns are important in understanding the political dynamics that drive integrative versus restrictive movements across the states.

Unauthorized Immigration and the Dilemma of Immigration Federalism Across variations in state policies over the past two decades, spanning the spectrum from highly inclusive to highly restrictive, one unifying theme stands out: The unresolved status of immigrants lacking legal authorization to reside in the United States. Unauthorized immigration presents a policy dilemma for states. On the one hand, federal statutes are unambiguous: Non-citizens lacking legal authorization are subject to arrest and removal, no matter how long they have resided in the country. On the other hand, both pro- and anti-immigration advocates acknowledge the lack of federal government capacity to apprehend and remove some 11 million long-term, unauthorized immigrants, leaving even those states with highly restrictive state policies with significant numbers of residents who are relegated to permanent underclass status.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 27

28/11/20 3:46 PM

28  The New Immigration Federalism

The sustained presence of unauthorized immigrants means that neither restrictive nor integrative state approaches can be wholly successful absent congressional intervention. State policies that buttress the extra-legal status of unauthorized immigrants—by restricting their access to state services and employment, or partnering with federal authorities in removal operations—entail family separations, labor market disruptions, wasted human capital, and the erosion of trust needed to carry out public health, educational, and law enforcement functions within immigrant communities. At the same time, the most integrative set of state policies cannot make any undocumented immigrant invulnerable to enforcement and removal operations by federal agents. Nor can they alter the permanent ineligibility of unauthorized immigrants for Social Security benef its, federallyfunded unemployment compensation, health care programs, temporary welfare assistance (SNAP and TANF), federal loans, a passport, a federallyapproved identif ication card, the right to vote in federal elections, or the right to government-provided legal counsel in civil deportation proceedings. The extent of the dilemma of unauthorized immigrants across states can be seen in Table 1.3. By 2016, unauthorized immigrants averaged 2.4 percent of all state residents across the United States and 3.4 percent of state labor forces. In many states, these figures do not convey the extent to which specific sectors— especially construction, agriculture, and accommodations—are dependent on unauthorized immigrant labor. Moreover, large numbers of unauthorized immigrants reside in “mixed status” families in which some members are citizens or permanent resident status. In 2016, the number of residents living with an unauthorized immigrant family member exceeded the total number of unauthorized immigrants in all but f ive states. Mixed-status families are most prevalent in states with the largest immigrant populations. In California, one in eight state residents lives with an unauthorized immigrant family member; in Texas, one in ten. Just over six percent of New York and Illinois residents also live with an unauthorized family member. However, mixedstatus families are numerous beyond these traditional immigrant-receiving states. Between 186,000 and 500,000 individuals—approaching one in 20 state residents—live in a mixed-status family in North Carolina, Oregon, Utah, Washington, Maryland, and Georgia. More than f ive percent of Coloradans, 6.7 percent of Arizonans, and 8.7 percent of Nevadans live in a mixed-status family. Absent congressional intervention, unauthorized immigration will remain the def ining and unresolved issue at the center of state immigration politics, regardless of the policy orientations of state governments.

BK-TandF-REICH_9780367608194-200341-Chp01.indd 28

28/11/20 3:46 PM

The New Immigration Federalism 29 TABLE 1.3  Unauthorized Immigrants and Mixed-Status Families

Individuals Residing with At Least One Unauthorized Family Member (2016)

Unauthorized Immigrant Population (2016)

State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon

Total 55,000 5,000 275,000 55,000 2,200,000 190,000 120,000 30,000 25,000 775,000 400,000 45,000 35,000 400,000 100,000 50,000 75,000 35,000 70,000