How States Influence National Immigration Policy
As Kamala Harris’s turnabout on immigration policy reveals, federalism affects the resolution of immigration policy even though it is a matter over which Congress is said to be the controlling authority. The local tiers of the federal system employ 700,000 police officers that help enforce federal laws, but when they refuse to do so, the federal government is hamstrung.
Not long ago, Harris expressed doubts about tough border control. In 2018, she, along with other senators, asked the Senate Appropriations Committee, to "reject President Trump’s . . . funding request for a . . . a large increase in U.S. Immigrations and Customs Enforcement (ICE) personnel." When a prosecuting attorney in California, she refused to give ICE the names of arrested migrants lacking documentation of legal residence. Now, as the Democratic nominee for president, she pivots, promising in her campaign advertisements that she “will hire thousands more border agents.”
It is hardly a disgrace for a political figure to change her mind. In a democracy, we expect leaders to respond to public opinion. But Harris’s turnaround reveals the power that states exercise over national policy. They have the boots on the ground to enforce—or not to enforce—what the federal government commands, and their decisions can shift the larger political context.
When it comes to borders, boots count for a lot. When wars fail to end decisively, borders are typically at lines drawn to match the locations where armed forces stalled. Just this past week, a North Korean deserter escaped to South Korea across a demilitarized zone located almost exactly where two armies faced one another seventy-one years ago. A similarly drawn border may someday separate Russia from the Ukraine when that conflict comes to an unsatisfying conclusion.
Boots on the ground also make a big difference when it comes to law enforcement. In 2022, over three-fourths of sworn law enforcement offices reported to state or local government officials. The other fourth was under the jurisdiction of 80 different federal agencies. Federal officers with major, border-control responsibilities had just 30,000 pairs of boots: ICE had 12,800, the FBI 13,500 and the Alcohol, Tobacco, and Firearms (ATF), the agency that recently captured a notorious Mexican narcotic ringleader, just 2,600.
The Constitution gives Congress the power “To establish an uniform Rule of Naturalization,” which the Supreme Court interprets as including the power to set the rules for entry into the country. The Court also relies upon Congress’s expansive power to regulate Commerce as a constitutional basis for assigning plenary power over immigration to the national government.
Yet the Supreme Court, under its doctrine of dual sovereignty, says the federal government cannot order a sovereign state to take any specific action. If California does not want to co-operate with ICE’s efforts to track and arrest undocumented immigrants, the sovereign state can defy the federal government with impunity.
In 1987, Oregon became the first state to refuse co-operation with federal immigration authorities. Connecticut followed in 2013. The dam broke after Trump’s inauguration in 2017. When Trump announced measures designed to tighten border control, a cluster of blue states, including California, Colorado, Illinois, Massachusetts, New York, and New Jersey, joined the sanctuary movement.
The Trump Administration fought back by ordering cuts in federal aid to police departments in states that were not co-operating with ICE. States fought back in federal courts, a battle that continued without resolution until the Biden Administration withdrew the Trump regulations. However, the Covid pandemic provided Trump with emergency powers needed to nearly shutter the border.
The Biden Administration inherited those emergency powers. But even before they ended in May 2023, border crossings began to climb with more relaxed border control. During the 2023 fiscal year, 3.2 million undocumented migrants entered the United States.
As immigration rates jumped, red states took their turn at undermining federal policy. Governor Greg Abbott started to build a Texas wall, completing 34 miles thus far, designed to frustrate unauthorized border crossings. Even more important, perhaps, he bused undocumented migrants to New York City, Chicago, and Washington, D.C.. Florida governor, Ron DeSantis, sent them to Massachusetts.
Suddenly, blue states were confronting a migration problem they thought was somebody else’s problem. New York City welcomed the migrants but found its shelters and social services overwhelmed and fiscal costs skyrocketing. Similarly overwhelmed, Massachusetts was forced to leave immigrants at Boston’s Logan airport. Chicago’s Mayor Brandon Johnson attacked Abbott for sowing “seeds of chaos.” Asking for a federal solution, he said “it was unsustainable” to ask “local governments . . . to subsidize” the feeding and housing of undocumented immigrants.”
As blue state leaders asked Washington for help. the Biden Administration reversed direction. Last June it restricted entry by 97% from its 2023 rate to just 2,500 migrants per day. Harris has not expressed any unhappiness with the change in policy. In short, a red state gubernatorial play altered the direction of a blue-controlled national government.
All of which is to say, boots on the ground count for as much as constitutional stipulations. When the pro-immigrant coalition failed to make headway in Congress, they turned to states for sanctuaries to protect the undocumented. When the Biden Administration implemented more welcoming policies, public support was undermined by those in control of state governments.
Federalism is neither left nor right. Both Democrats and Republicans can frustrate national policy via state action. But federalism befriends losers in the big game of national power by giving resources to opposition groups and interests otherwise pushed to the sidelines. That is not a bad thing for the survival of a constitutional democracy.
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Paul E. Peterson is a senior fellow at the Hoover Institution, Stanford University and a professor of government at Harvard University.