Forced Federalism: States as Laboratories of Immigration Reform

Keith Cunningham-Parmeter

Volume 62, Issue 6, 1673-1728

Ever since Justice Louis Brandeis characterized states as laboratories of democracy, judges and scholars have championed the ability of states to offer a diverse array of solutions to complex national problems. Today, proponents of enhanced immigration restrictions apply the same rationale to state immigration laws. This Article challenges the assertion that states can serve as valuable laboratories of immigration reform.States that enact their own immigration laws do not internalize costs or yield replicable results—two conditions needed for viable experimentation. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, current state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms—far from the type of diverse testing associated with true innovation and replication.Today’s state immigration experiments also fail to internalize costs—another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states alone but are felt by the nation as a whole.

Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.

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