Immigration Status Federalism

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is ill-equipped to adjudicate disputes about the scope of state authority in the immigration statute, as it relies on outdated presumptions rooted in the respective sovereign powers of federal and state governments.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

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