Policy Innovation or Vertical Integration?A View of Immigration Federalism
from the States
LINA NEWTON
Since 2005, state legislatures have passed hundreds of immigration bills, and stateofficials have argued that their efforts attempt to solve immigration crises causedby federal inaction. The state–federal clash over immigration seems to confirmscholarship suggesting deepening lines of conflict in the federal system since the1990s. The question remains, however, whether this explosion in state immigra-tion laws signifies a move by states to tailor their own solutions to immigrationissues. This article explores whether states are serving as laboratories of innova-tion for immigration policy. The study analyzes over five hundred immigrationbills passed between January 2006 and December 2008, and engages in a com-parative analysis of three immigration policy areas (immigration law enforce-ment, employment regulations, and drivers’ licenses) where there exist varyingdegrees of state autonomy from national policy and thus distinctive possibilitiesfor states to offer creative approaches to immigration issues. The findings suggestlittle evidence of policy innovation at the state level, although a handful of statesare challenging federal supremacy in immigration matters.
In the United States, immigration policy has traditionally been understood asa federal prerogative, and studies of immigration policymaking view thedevelopment, design, and implementation of this area of policy as a functionof nation-building, or as the affirmation and struggle over state-centric prin-ciples of sovereignty, territoriality, and citizenship (Ngai 2004; Tichenor2002). Since the nineteenth century, the courts have applied the principle offederal exclusivity in immigration matters fairly consistently, giving Congresssole authority in matters pertaining to naturalization and foreign policy and,by extension, to the management of foreign people entering and residingwithin U.S. territory. More recent policy history offers key examples in whichstate and local efforts to manage foreigners within their jurisdictions havebeen struck down by the courts for preempting federal authority (De Canas
Address correspondence to Lina Newton, Political Science Department, Hunter College,CUNY, 695 Park Avenue, New York, NY 10065, USA. Telephone: (212) 772-5500, Fax: (212)650-3669; E-mail: [email protected].
v. Bica 1976; League of United American Citizens v. Wilson 1997) or forviolating constitutional rights such as equal protection and freedom ofspeech extended to resident foreigners (Plyler v. Doe 1982; Lozano et al. v.City of Hazelton 2007).
Doctrinal practice and division of authority principles notwithstanding,the last half of this decade witnessed a rush of immigration lawmaking at thestate level. Early state efforts to assert authority over immigration mattersappeared in states with ballot initiatives, as was the case in 1994 with Cali-fornia’s Proposition 187, and then in 2004 with the passage of Proposition200 in Arizona.1 In the years since, immigration policymaking has expandedto states without popular legislative mechanisms. Figure 1 demonstrates asudden explosion in state activity: thousands of laws have been introduced inforty-four statehouses across the country. While there is a significant drop-off between bill introduction and passage, the final tally of 932 pieces ofimmigration legislation passed from 2005 through 2009 shows that state-houses around the country are devoting a good deal of energy to the subject.
Among the questions that arise from this surge in state activism are whatthis activism indicates about intergovernmental dynamics and whether itindicates a shifting role for the “middle tier” of American government afteryears of federal supremacy in this domain. Part of the answer to this questionlies in the contents of these laws and what these reveal about how states
Figure 1. State Immigration Policy Activity by Year.Source: National Conference of State Legislatures.
view their role in immigration management. Such laws may be a function ofvertical integration and thus an extension of the broader centralizationefforts that characterize American federalism of late (Krane 2007, 2002).National security imperatives have demanded increased centralization andexpansion of the federal government’s immigration enforcement and man-agement capacities, and one way to accomplish the synchronization ofnational security efforts is through the engagement of existing state institu-tions and their administrative and enforcement resources (Roberts 2008).Vertical integration may result from coercive mechanisms such as mandatesand directives from the national government (Posner 2007; Kincaid 1990),but it could also result from incentives designed to entice state cooperation(Allen, Pettus, and Haider-Markel 2004).
Alternatively, it may be that state activism is a response to the absence ofclear leadership or policy direction at the national level. The movementamong the states to legislate immigration may reflect the states’ need to actindependently of national policy goals in order to pursue their own interestsas they have with environmental regulations (Sapat 2004). According to thetimeframe captured in Figure 1, state activity surged in the wake of failedcongressional reform negotiations in 2006 and 2007. Research from otherpolicy domains has found that in the absence of clear policy leadership at thenational level, states rise to fill the policy void (Reeves 1990). Moreover,under these circumstances, competition among states to become policyleaders can yield policy innovation (Mintrom 2009).
This study investigates whether the recent explosion in immigration law-making is the result of national policy, or whether the expanding pool of lawsoffers evidence of state independence in the form of innovative policydesigns. The study is based on a collection of 552 state immigration lawspassed in 2006, 2007, and 2008; it offers a comparative analysis of legislativecontent across three policy areas and contrasts state immigration laws in eacharea with corresponding federal laws to locate examples of innovation at thestate level.
For the purposes of this study, innovation refers to novel policy approachesto immigration issues. This criterion differs from mere adoption of legislationthat is new to a state and therefore defines policy innovation differently fromthe more common usage found in scholarship on policy diffusion and inno-vation in the American states (see, e.g., Mintrom 1997; Berry 1994; Gray1973). Instead, my use of the descriptor should recall Thad Beyle’s (1988)effort to capture policy creativity and leadership among American governors.2
Because this study explores state legislative content for departures fromnational policy, and because this study tries to distinguish between state-driven policy activism and nationally driven state policy activism, the studyrequired a definition that would allow for such distinctions. Rather thansimply replicate federal policy tools and goals on a smaller scale, innovativestate policies should offer solutions not seen at the national level prior to theirintroduction. Likewise, policy innovation is different from actions designed to
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resist federal mandates or directives that involve states as facilitators forfederal policy. Innovative legislation will diverge from federal policy becausestates face unique problems requiring customized solutions or, because asstates, they are uniquely suited in their jurisdictional authority to offer somespecific types of solutions.3
IMMIGRATION FEDERALISM AND THE LABORATORIES OF
INNOVATION HYPOTHESIS
Even though the national government is generally understood to enjoysupremacy in immigration matters, any study of immigration policy in theUnited States is complicated by the federal structure. What we often call“immigration policy” only technically refers to the enforcement and man-agement of entry and exit of foreigners. In these matters, the national gov-ernment has long enjoyed plenary power.4 Aside from a degree of federaloversight over refugee resettlement, however, there is no federally directed“immigrant policy” as exists in immigrant-receiving societies like Australiaand New Zealand, where national policies guide settlement and integration.In the United States, by contrast, settlement and integration programs havehistorically fallen to state and municipal governments (Neuman 1993). Oneoutcome of this tradition is that to this day there exists a great deal ofvariation in the policy orientations of states and municipalities towardsnewcomers (Rodriguez 2008).
Whether this arrangement remains a desirable or reasonable distributionof authority is at the center of “immigration federalism” scholarship thatreexamines the origins and development of the principle of federal exclusivityin immigration matters. Peter Schuck (2007) has made a legal argument for“a more robust role for the states in certain areas of immigration policy” (59),particularly in those instances where state efforts align with federal policy.Peter Skerry (1995) has argued for a return to greater state and local involve-ment in both enforcement and settlement matters, citing both the historicaltradition of decentralized authority in the United States, and the potential forstates to serve as policy innovators, as justifications for a return to immigra-tion policymaking at the state level. In a similar vein, Peter Spiro (1994,2001), argues that state involvement in both immigration and immigrantpolicy is valuable as it allows the local political, social, and economic envi-ronment to drive immigration and settlement issues. More recently, ChristinaRodriguez (2008) argued that court interpretations of federal supremacy overimmigration matters were rooted in a nation-state model that is no longercapable of responding to an interface between global pressures and local orregional demands. In addition to her critique, Rodriguez provided a consti-tutional framework that privileges localized and regional decision making onimmigration matters as a more flexible and reasonable approach to migra-tory labor flows and new settlement patterns.
Of course, the same political and legal mechanisms that might allow forstates and localities to offer tailor-made responses to immigrant populationsalso have the potential to generate constitutional conflicts if they threatennationalized civil rights and liberties. Aside from challenges to federalsupremacy, immigration law formulated at the state and local level candevolve into formalized discrimination (Olivas 2007; Wishnie 2001)—a fearthat is proving to be more than hypothetical. Evidence emerging from pre-dictive analyses of state and local immigration laws and ordinances suggeststhat these statutes are more a function of the partisan and ideological orien-tations of a state’s population than a function of the actual socio-economicconditions (unemployment rates, crime rates) that these laws purportedlyaddress (Chavez and Provine 2009; Ramakrishnan and Wong 2008). A studyof local enforcement efforts against immigrants also showed that such effortsled to an increase in racial profiling against Hispanics (Gardner and Kohli2009), while the U.S. Department of Homeland Security (DHS), which hasrelied on increased participation from state and local law enforcement, rec-ognizes that abuse of immigrant rights has accompanied the decentralizationof immigration enforcement (DHS 2010). Most recently, a federal districtjudge’s preliminary injunction on many of the state and local law enforce-ment provisions on Arizona’s controversial S.B 1070 was based in part onthe argument that the law’s proposed policing dragnets would violate therights of legal immigrants and increase the likelihood of wrongful arrests(Archibold 2010).
Conflicts emerging from state forays into immigration enforcementlend credence to the argument that intergovernmental relations have grownincreasingly tense as states try to resist mandates and other coercive tacticsof the national government (Posner 2007; Krane 2002, 2007; Kincaid 1990).Certainly the declarations of frustrated state officials in newspapers andon television portray their efforts as filling a policy void resulting fromfederal inaction. However, there are also spaces in which the federal gov-ernment has created avenues for subnational government participation(Newton and Adams 2009). One result is that new jurisdictional structureshave emerged as state governments move beyond creation and oversightof settlement policies and into areas of immigration law enforcement(Varsanyi 2008).
Even as the phenomenon and timing of all state immigration legislationraises provocative questions concerning intergovernmental relationships,each area of state policymaking has witnessed distinctive developments thathave altered some long-standing and clear jurisdictional boundaries. Immi-gration policy covers several policy domains, and each domain involvesdifferent degrees of state autonomy from both the letter and administra-tion of federal statutes. Additionally, many important developments instate–federal relations have resulted from policy changes at the national levelthat preceded the recent surge in state-driven immigration policymaking.Proponents of a greater state role in immigration policymaking tend to
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assume that intergovernmental conflicts arise from the inability of thenational government to produce a one-size-fits-all policy for states. However,this assumption does not allow for the possibility that states might haveincentives to share in or cooperate with federal policy goals.
The following comparative analysis of state policy content involves threeareas that have witnessed distinctive changes in the roles states are ordered orexpected to serve in the larger scheme of immigration management. Thefindings suggest that what has emerged over the last two decades is a policycomplex that increasingly depends on integration and cooperation by statesand lower tiers of the federal system. In cases where states have refusedinvolvement in federal initiatives and mandates, little evidence emerges toindicate that most states act with the intent of flouting federal law or rejectingtheir role in federal policy administration. These findings, in turn, suggestlimited support for those who hypothesize that greater state engagementwould lead to policy innovation or policies specifically tailored to each state’sunique political climate and immigration needs.
STATE IMMIGRATION BILLS, 2006–08
This study involves data assembled from three years of reports produced bythe National Conference of State Legislatures (NCSL) Immigrant PolicyProject. The NCSL began covering immigration laws in 2005, but the data-base (and this article) incorporates 2006, 2007, and 2008 reports as theprimary sources of legislation. In addition to providing bill numbers and billstatus (passed, vetoed by governor, pending signature, or signed into law),the reports provide brief summaries of each bill’s content, and pertinentinformation should a bill serve to amend prior legislation. During thisperiod, a total of 3,437 bills were introduced in forty-four statehousesaround the country; of these 557 passed, and governors vetoed only twentyof these.
The bills during this period ranged from multipronged omnibus legislation(eight in total) to narrowly tailored shifts in definitions or terminologyembedded in prior laws. The NCSL reports categorize the policies by typeof law and offer brief descriptions of each law’s content, but these havebeen supplemented with information gathered from state news sources inLexisNexis, and other organizations tracking state laws like the NationalImmigration Law Center (NILC), the American Immigration Lawyers Asso-ciation (AILA), and the American Civil Liberties Union (ACLU). Whilethese organizations advocate for immigrants’ rights, they provide substantialresources on pertinent case law and text of court decisions, reportingon policy implementation and additional legislative action that wasoften missing from national and state news coverage. In order to capturethe interface between federal policies and state laws, information aboutfederal bills and initiatives was gathered through LexisNexis Congressional
database, the U.S. DHS, U.S. Department of Justice, and related agenciesnow falling under this organization, as well as the GovernmentAccountability/General Accounting Office.5
Every major class of immigrant, whether unauthorized, legal, refugee, ortemporary/seasonal foreign laborer, appears at some point as a subject in the2006–08 body of laws. What is also impressive is the broad range of subjectscovered by these bills (see Table 1).
In all, the 557 bills span eleven policy areas.6 Of these, eight are omnibus/multi-issue legislation covering an array of immigrant-related issues. Other-wise, state activity tended to be concentrated in a few categories. Themajority of laws related to identification and drivers licenses (105) and immi-grant employment (73). Another common topic was immigrant education(55), access to federal and/or state-funded benefits (54), with the next mostcommon category involving law enforcement and laws pertaining to humantrafficking (48 and 40, respectively). Beyond these high-frequency categories,state laws also focused on border control, regulation of legal services/assistance to immigrants, and voting and elections. The “miscellaneous”category includes everything from resolutions directed at Congress to passfederal reforms, to the establishment of commissions and task forces on arange of immigrant-related topics. The laws in this category vary from sub-jects like English-only statutes (Kansas), to narrowly targeted bills address-ing bedding standards for migrant housing (North Carolina), or lawsclarifying the identification needed to rent a keg (Wyoming). Also includedin this category are various symbolic nods from state legislators tothe contributions of immigrant groups/nationalities (many states) and a fewbills extending recognition to families participating in overseas adoptions(Delaware).
COMPARATIVE POLICY ANALYSIS AND CONTEXTS FOR INNOVATION
State–federal relations differ across policy domains, and, therefore, compara-tive analysis across policy areas may produce more general answers to ques-tions of intergovernmental dynamics than would analyses of single policyareas (Gormley 2006). This analysis engages three areas of state immigrationlegislation—immigration law enforcement, immigrant employment, andimmigrant identification—which represent the most frequent areas of legis-lative activity among states but which are also marked by unique possibilitiesfor state policy innovation given the variation in autonomy that states enjoyrelative to national immigration policy. The policy areas were selectedaccording to which unit of government (national or state) has beenunderstood (both in practice and through legal doctrine) to have primaryauthority.
Each policy area is documented according to key developments and legalrulings over two to three decades (sometimes more) that have been mostinstrumental in determining federal versus state jurisdiction over the policydomain. Thus, while states have produced numerous laws governing theemployment of immigrants from 2006 to 2008, the hiring of foreign nationalsis governed by the 1986 Immigration Reform and Control Act (IRCA) (andsubsequent legal challenges to state laws seeking to regulate hiring revolvearound this statute). Immigration law enforcement has long been understoodto mean federal law enforcement, but a paradigm shift at the federal levelbeginning in the 1990s resulted in increased opportunities for state partici-pation in the enforcement of federal, state, and local laws. Finally, statesmaintain authority over issuance of drivers’ licenses, identification cards, andprofessional licensing, and the most recent effort by the federal governmentto bring uniformity to the fifty-state system of personal identifiers (REALID) resulted in near-complete rejection by the states.
The comparison across policy areas and across levels of government offersa way to probe the extent of state conflicts with federal government: varia-tions across policy domains in the development of federal–state relationshave produced some contexts more likely to engender state policy innova-tion. Although some scholars of federalism grant primacy to the federalgovernment’s use of mandates to shape intergovernmental policy relations(Posner 2007), others have noted that fiscal federalism offers noncoercivetools that encourage state compliance with federal policy goals (Allen,Pettus, and Haider-Markel 2004). Thus, for those policy domains where thenational government is both clear about federal authority and state roles, andfor which financial incentives exist for state compliance, we should expect tosee states passing laws designed to facilitate federal policy goals.
By contrast, policy innovation among states might reflect an assertion ofstate control in response to centralization efforts at the national level (Krane2007) or increasingly burdensome federal mandates. However, innovationmight also be a response to the absence of policy or a deficiency in policy
leadership at the national level (Mintrom 2009). Thus, a heavy federal policypresence might produce reaction in the form of state policy innovation.However, it is more likely for policy innovations to materialize in thosedomains where states have primary jurisdiction, and few impediments existto states taking policy initiative.
STATE LAWS: COMPLIANCE AND BEYOND
This section delves into three specific policy areas of high state activityselected according to the expectation one would have for states to act withrelative autonomy from the federal government. By examining each policyarea relative to what is allowable in federal law, we should be better able tounderstand the extent to which states are acting independently of the federalgovernment or, at least, in absence of clear federal guidance. What emergesis a complex picture of how states have responded to national immigrationgoals.
EMPLOYMENT LAWS: STATES RECLAIM A ROLE
It is notable from a policy development perspective that state efforts tosanction employers for hiring illegal immigrants preceded federal regulationsin this area. In the 1970s, eleven states, including California, Florida, Con-necticut, Delaware, and Montana, passed laws aimed to punish employersfor hiring aliens “not entitled to lawful residence in the United States,”although such laws were rarely enforced (U.S. General Accounting Office1980, 45). It was not until 1986 that the IRCA instituted federal sanctionsfor employers hiring unauthorized workers. The federal law required thatemployers verify documents indicating work eligibility among new hires, andemployers found to be in violation of this law would incur fines or even facejail time for repeat offenses. The federal law also included language thatprohibited states from erecting their own sanctions laws as they had in thepast. By all accounts, however, federal employer sanctions failed to deter thehiring of undocumented workers, in part due to minimal enforcement and inpart because alternative practices (such as use of fraudulent documents andhiring through labor contractors) allowed both workers and employers toskirt enforcement efforts.7
Later, the 1996 Illegal Immigration Reform and Immigrant ResponsibilityAct (IIRIRA) would introduce a new electronic worker verification program,or “Basic Pilot,” intended to streamline the verification process and furtherencourage employer compliance with federal hiring laws. With Basic Pilot,employers could check a prospective employee’s Employment EligibilityVerification form (commonly known as the “I-9”), and the system wouldinstantly cross-check identifiers such as social security and date of birthagainst databases maintained by the Social Security Administration. As the
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name “Basic Pilot” suggests, Congress initially conceived of the system astrial program, and the states of California, New York, Texas, Florida, andIllinois served as the testing grounds. However, employer participation inBasic Pilot was voluntary: the incentive to participate lay in the program’spromise to streamline the procedure for determining who could legally workin the United States and in the promise to minimize employers’ chances tocommit violations or incur sanctions.
Since its inception in 1996, Basic Pilot has been renewed and expanded andis presently available for use in all fifty states. After the administration ofimmigration enforcement was reassigned to the DHS in 2002, employmenteligibility cross-checks included databases maintained for DHS purposes andthe name of the program was changed to “E-Verify.”8 While all employers(with some exemptions) are required to file an I-9 form and verify workeligibility by asking prospective hires to provide documentation of legal workstatus, the Basic Pilot/E-Verify system remains a voluntary program that isonly federally mandated for certain types of federal contractors and a smallnumber of federal agencies. A program evaluation produced by Westat forthe DHS attests to E-Verify’s minimal use: only 4 percent of an estimatedtwenty-nine million new hires were processed through the system in the 2007fiscal year (Westat 2007).
STATE EMPLOYMENT LEGISLATION, 2006–08
Bills dealing with immigrant employment constituted 13 percent of thebody of laws passed from 2006 to 2008. Seventy-three (13 percent) addressedimmigrant employment. Seven of these were resolutions that voiced supportfor the guest worker programs proposed by Congress during federal policydiscussions. However, the vast majority of these laws were designed to alterbehaviors among employers and/or prospective laborers with a concentra-tion on enforcement of employment eligibility. Many of these enforcementefforts operate within a federal framework designed to identify individualswho are work eligible. In some states, however, enforcement-oriented lawswere designed to strengthen workplace regulations—a field where the federalgovernment has established minimum regulatory requirements but wherestates also claim enforcement authority. Table 2 presents state employmentlaws for each year according to their primary focus.
Arizona’s Legal Arizona Workers Act (LAWA) (2007, HB 2779) isperhaps the best known for its stringency and resulting legal challenges: itprohibits all employers from hiring undocumented workers, requires employ-ers making new hires to use Basic Pilot/ E-Verify, and violators can have theirbusiness licenses revoked if they are found to be in violation of the law. SouthCarolina’s omnibus measure (HB 4400) also requires use of E-Verify. From2006 to 2008 the number of states requiring use of E-Verify for publicemployers also appears in this column. In addition to illustrating the range ofaction pursued by states, the table shows that the primary activity of states
has been to restrict eligibility for collecting unemployment benefits to immi-grants authorized to work in the United States. However, some states havechosen to strengthen laws governing employer responsibility for immigrantworkers regardless of status: Illinois, for example, passed HB 928 in 2007,which asserts that “an alien who contracts a disease as a result of employmentin Illinois” may receive “the same” workers’ compensation benefits availableto citizens (National Conference of State Legislatures 2007, 8). Likewise,Arizona’s SB 1125 (signed into law in May of 2008) designates that compen-sation benefits must be paid to employees permanently disabled or deceasedas a result of work and defines “employee” as “every person in the service ofany employer . . . including aliens and minors legally or illegally permitted towork for hire.”
With the exception of Illinois, which codified its refusal to participate inE-Verify in 2007, more states are mandating that employers verify workereligibility.9 Again, while ease of verification is supposed to encourageemployer participation, the E-Verify system—though widely available andrequired of some federal agencies and contractors—is not federally man-dated. As for the expanding regime of penalties for employers of unautho-rized workers, some state laws appear to exceed the regulatory andpunishment regime of the federal government. Although the IRCA generallysupersedes state efforts to regulate hiring, preemption questions haveemerged over the types of punishments states threaten for violations (U.S.Chamber of Commerce v. Candelaria 2009; Chamber of Commerce v. Edmond-son 2010). In a narrow victory for states, the Supreme Court upheld a 2007Arizona law (LAWA) that would revoke business licenses of enterprisescharged with hiring unauthorized workers (Chamber of Commerce v. Whiting2011).10
IMMIGRATION LAW ENFORCEMENT: THE MULTI-TIERED COMPLEX
The area of immigration law enforcement has experienced a remarkabletransformation over the past ten years, from a system in which the federalgovernment held virtually unchallenged authority to a system that now fullyengages state and local agencies that opt for a role in enforcing federal laws.11
While states and other subnational governments are not mandated to complywith federal enforcement, numerous avenues have emerged to encourage andutilize local resources in pursuit of immigration control. Law enforcementneeds following the 2001 terror attacks are often cited as the root of state andlocal forays into immigration law, but federal policy developments during themid-1990s lay the foundation for multi-tiered immigration enforcement.
In 1996, two pieces of legislation passed in the 104th Congress weredesigned specifically to recruit state and subdivisional law enforcement agen-cies into practices of information sharing for immigrants present in theUnited States. The 1996 Anti-Terrorism and Effective Death Penalty Actauthorized the collection of information on immigrant felons for inclusion in
the FBI’s National Crime Information Center database. Later, the 1996IIRIRA would further encourage state and local police to assist federalagencies with “interior enforcement,” or the apprehension/detention ofunauthorized or criminal aliens found in areas beyond either the jurisdic-tional or practical reach of federal immigration enforcement agencies. The1996 IIRIRA allowed for states and/or localities to voluntarily agree to checkthe status of, temporarily detain, or transport people discovered to be unau-thorized or criminal aliens.12 A section of the bill that has gained notoriety,287(g), allows local and state law enforcement agencies to enter into memo-randums of agreement (MOAs) with the Attorney General’s Office, whichwould enable officers to train to enforce immigration laws. The states ofFlorida and Alabama were the very first to enter into MOAs. As of March2010, a total of sixty-seven localities across twenty-three states were partici-pating in 287(g) (DHS 2010).
Following the 2001 terror attacks, efforts to engage state and subdivisionalpolicing authorities in tracking unauthorized and criminal aliens only accel-erated as domestic antiterrorism efforts demanded the integration of local,state, and federal law enforcement. In a move designed to authorize localpolice support for counterterrorism purposes, the U.S. Department of Justiceissued an opinion via its Office of Legal Counsel which asserted that local andstate police have the “inherent authority” to enforce both civil and criminalimmigration laws (Gladstein et al. 2005). The U.S. DHS also began addingthe names of individuals charged with violating civil and criminal immigra-tion laws to the National Criminal Information Center (NCIC) database(Bernstein 2003). At the federal level, legislation designed to settle the dis-agreement over the “inherent authority” of subdivisional police agencies toengage in immigration enforcement and develop a system of compulsorystate and local enforcement of civil immigration (referred to as the CLEARAct) was introduced in Congress in 2003 and again in 2005. AlthoughCLEAR failed in Congress, Immigration and Customs Enforcement (ICE)has effectively circumvented congressional approval by securing state andlocal cooperation via its own set of programs.13
The expectation for state cooperation with federal immigration preroga-tives has prompted concerns that collaboration will shift costs from theJustice Department to state law enforcement agencies (Gladstein et al. 2005).However, such fears have not dampened state cooperation: laws passedbetween 2006 and 2008 show increased coordination and cooperationwith federal immigration enforcement. Table 3 provides a summary of stateenforcement laws according to the specific nature of these efforts.
In total, twenty-two states passed forty-eight laws related to immigrationenforcement, with Arizona and Colorado each passing six such laws. Sixteenstates passed laws issuing directives to state and local enforcement agencies tocheck and formally consider (for sentencing, detention, bail, and/or release)the immigration status of individuals who end up in police custody fornon–immigration-related reasons (a detail captured in the second and fourth
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categories of Table 3). Five states passed laws specifying that they will sur-render to federal authorities any individuals in state or local custody found tobe in violation of immigration laws. Related to this were the actions of fivestates to mandate full cooperation with federal immigration enforcementefforts, including entry into a memorandum of understanding (MOU) withthe U.S. Department of Justice. Legislation related to immigration lawenforcement contrasts with employment laws in that no states passed lawscontradicting or refusing to comply with federal efforts to engage their coop-eration between 2006 and 2008. However, while such opposition does notappear here, it is worth noting that Alaska (2003), New Mexico (2005), andOregon (2001) have official policies or resolutions against cooperation withfederal immigration enforcement that passed prior to the period under study(NILC 2008).14
IDENTIFICATION AND LICENSING
A look back at Table 1 shows that the area of greatest state activity was in thearea of drivers’ licenses, identification, and other licensing, where statescontrol the field and set standards for professional and other types of busi-ness licensing. Close examination of legislative content shows, however, thatmany of the state bills were passed in reaction to federal legislation, specifi-cally the 2005 REAL ID Act. REAL ID and its implementation has perhapsbeen the most contentious issue in immigration federalism, and, not surpris-ingly, state legislative efforts in this area are marked by efforts to avoid,thwart, or grandstand against federal efforts to bring coherence to thepresent U.S. system of personal documentation.
The REAL ID Act emerged from the recommendations of the 9/11 Com-mission (National Commission on Terrorist Attacks 2004). Although theissue of national identification has a long history of proposal and contentionin the United States, the law’s passage was possible because it was introducedwith limited debate and ultimately tacked onto an emergency appropriationsbill to fund the Iraq and Afghanistan wars (Regan and Deering 2009). Thislegislation sought to remove weaknesses in the states’ licensing practices—such as easy counterfeiting and multiple issuance—that the 9/11 hijackersshowed to be exploitable. As a consequence, REAL ID set numerous federalstandards for the issuance and security of state drivers’ licenses, such as theinclusion of biometrics and other machine-readable information. The lawrequired all non-citizen applicants for licenses or state identification cards toprovide documentation of lawful presence in the United States and requiredstates to use the U.S. DHS’s Systematic Alien Verification of Entitle-ment (SAVE) system to verify the authenticity of those documents. Theseprovisions would have prevented unauthorized immigrants from obtainingdrivers’ licenses.
REAL ID engendered significant opposition from states because of thecost of implementing the law, which could be over US$11 billion according to
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the National Governors’ Association (2006). Since its passage, several statesfearing costly burdens from the new regulatory regime lobbied the federalgovernment to either provide funding to cover implementation costs or reviseprovisions to reduce costs. Moreover, the states themselves have facedlobbying from public agencies and advocacy groups against REAL ID’simplementation (Regan and Deering 2009). Part of this revolt againstfederal mandates appears in Table 4.
From 2006 to 2008, fourteen states passed resolutions and/or statutes thatopposed REAL ID, urged Congress to repeal it, instructed state agencies notto comply with it, or (as was the case in Illinois) directed that no money beallocated for REAL ID-related endeavors. While such opposition is clearlystrong, and as others have noted, a significant rarity in federal–state relations(Newton and Adams 2009; Regan and Deering 2009), noncompliance withREAL ID does not mean that states altogether reject the idea of stricteridentification laws. In fact, as Table 4 also shows, several states passed lawsthat bring state identifier regulations in line with those required in the REALID Act. For example, federal guidelines now require that licenses issued toimmigrants on temporary visas expire at the same time as those visas: Table 4shows several states (Delaware, Idaho, Indiana, Louisiana, Maine, NorthDakota, and Tennessee) making this change. Other states passed laws thatrequire proof of legal residence to obtain a driver’s license, which is alsorequired by REAL ID.
State policies detailing procedures for issuing state identifiers to qualifyingimmigrants formed the bulk of state laws falling under this category; the sumtotal also encompasses a sundry group of legislation ranging from penaltiesfor identification/document fraud or laws regulating professional andhunting/fishing licenses. In all cases, licenses for businesses and professionalslimited issuance to citizens and/or legal permanent residents. In New York, a2007 bill extended veterinary licenses to immigrants who could demonstratethat they were in process to correct their status to legal permanent resident.However, it is clear that most of the legislation falling into this policy areawas designed to restrict the ability of unauthorized immigrants to functionin society by restricting immigrants’ ability to get a professional license orpenalizing the use of fraudulent drivers’ licenses and other state-issued iden-tification to obtain employment. While some states adopted parts of REALID, it is necessary to note that as of 2008, no state had implemented thechanges needed to fully comply with the federal policy.
DISCUSSION
The preceding analysis considered three areas of immigration and immigrantpolicy (employment, law enforcement, and driver’s license/identification)where states concentrated the bulk of their efforts during legislative sessionsspanning 2006–08. State–federal relationships in each area developed along
distinctive paths, producing variations in state participation with federalpolicies. The close look at state bill content in combination with federalstatutes reveals the different mechanisms (mandates, pilot programs, spon-sored training and other forms of financial incentives, MOAs and MOUs)that the national government has used to facilitate state compliance orencourage state cooperation. By examining state policies relative to their
Table 4. State Driver’s License/Identification Laws
SOUTH DAKOTA 2008*TENNESSEE 2008, 2007UTAH 2008WYOMING 2007
Source: National Conference of State Legislatures*Denotes a resolution.**Numbers in parentheses mean more than one law on the subject was passed. Some statespassed both laws and resolutions in a given year, which explains their multiple appearancesacross columns. In other cases states may appear more than once in a given year because billsdealt with numerous aspects of licensing.†Georgia had three laws in 2008 alone regulating licenses for immigrants. One of these (HB 978)was vetoed.‡Illinois’ 2006 resolution (HR 1188) creates a task force to study the “problem of the illegal saleof fraudulent driver’s licenses” and other documents.
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federal counterparts, we notice that state immigration legislation shows littlevariation from standing federal law in corresponding areas. In the case ofemployment laws, states originally tried to de-legitimate the employment ofunauthorized workers but found their efforts preempted federal law, and thepassage of the 1986 IRCA created a federal sanctions structure managed andimplemented by federal agencies. Changes instituted at the federal level in the1996 IIRAIRA, along with the development of federal pilot programs, wouldoffer states an avenue for compliance with federal laws. Legislation from thestates demonstrates a growing willingness to participate in federal employ-ment verification programs designed to assist in enforcement of nationalemployment eligibility requirements.
In the case of immigration law enforcement, while the federal governmenthas established responsibility, federal policies like 287(g) have granted thosestates wishing to engage in immigration enforcement the policy coverage andthe financial support to do so. Again, in the rarer, but attention-grabbinginstances that states passed laws exceeding the role allowed them in thefederal enforcement scheme, preemption questions have resulted in courtchallenges. However, for the most part, state immigration law enforcementbills clearly reflect a willingness on the part of states to offer their policingcapabilities for national enforcement imperatives, and federal funding forstates may entice cooperation.
Finally, state legislation covering licenses and identification providesan important contrast as the single area in which states continue to enjoyprimary authority and in which state authority benefits from a nationalpolitical culture that has historically demonstrated aversion to national iden-tifiers. If, of the three examined here, a policy area could be deemed fertile toinnovative policy designs with minimal concern for federal intrusion, thiswould be it. In short, the state laws addressing licensing and identificationshould, at minimum, reflect state resistance to federal encroachment, andalongside the resolutions and laws reflecting anti-REAL ID fervor, we wouldexpect state identifier laws to mirror the state–federal conflict over authorityand over unfunded federal mandates. Instead, what the bill analysis shows isthree years of legislative refusal to cooperate with REAL ID, accompaniedby a host of laws that essentially conform to the spirit of REAL ID if not theletter of the law.
While the findings here support theories emphasizing top-down pressuresthe national government exerts on states, it is important to note the manyquestions that remain as openings for further inquiry. Because the researchhere focused on successful bills, and not the full body of laws introduced ineach year, it may be that innovative legislation existed but did not have thepolitical support to survive the legislative process. Likewise, while this studyfocused on statutory content, it is a first step, as state agencies and bureau-crats charged with implementing federal and state policies might reveal addi-tional sources of innovation as has been documented in other policy domains(see Sapat 2004). Likewise, a key factor in the success and dissemination of
policy innovations lies in the activities of interest group activity and politicalentrepreneurs (Mintrom 1997). Finally, the state-centered nature of thisstudy leaves out the actions of municipal governments around the countrythat are either pioneering modes of restrictionism or experimenting withmore welcoming policies toward their immigrant residents. Immigrationpolicy innovation may be flourishing at the local level, and explorations ofwhy there, but not the state or national level, are needed.
STATES AND THE LIMITS OF POLICY INNOVATION
Scholars of immigration federalism who favor a greater state role in policy-making tend to assume intergovernmental conflicts arise from the inability ofthe national government to produce a universally suitable immigration policyand expect that, if allowed, states would craft policies that reflect theirparticular needs and social environments. However, such an assumption doesnot allow for the possibility that states might share or cooperate with federalpolicy goals. Even more importantly, the yield from three years of statelawmaking in the field shows little empirical support for Peter Spiro’s (2001)“steam valve” hypothesis or Peter Skerry’s (1995) expectation that stateswould serve as “laboratories of innovation” for immigration lawmaking. Atmost, some states like Arizona, Oklahoma, and South Carolina, are pushingthe boundaries of permissible action, but they are largely utilizing methodsand pursuing goals defined in national policy rather than crafting originalresponses to their resident immigrant populations. The number of statespursuing similar policies in any given area suggests that states may beemulating one another, but the content of the policy still reveals littleindependence from existing national policy.
Officials who support state legislative efforts have characterized them as aresponse to federal failure. It is not surprising that 2006 and 2007 witnesseda jump in policy-making activity as these were both years in which Congressfailed to produce immigration policy reform. In the absence of new directionfrom Washington, state activism surged, but much of it—driven by employ-ment legislation and immigration enforcement laws—capitalized on avenuesfor cooperation previously embedded in national policies. In this respect, thefindings for state immigration policies support other scholarship that grantsprimacy to the national government’s influence on state policymaking and itsability to engage states through financial incentives and other non-coercivemeans (Allen, Pettus, and Haider-Markel 2004; Soss et al. 2001; Liebermanand Shaw 2000; Eyestone 1977). In state noncompliance with REAL ID, wesee state legislation crafted in reaction to a national policy move, with thecontent of anti–REAL ID resolutions revealing the conflict that one wouldexpect from unfunded mandates and centralization of power that has cometo characterize homeland security policies (Posner 2007; Krane 2002, 2007).Outside of legislative reaction to REAL ID, however, the influence of federal
Newton POLICY INNOVATION OR VERTICAL INTEGRATION? 131
policy appeared in the design of laws restricting immigrant access to state-issued identifiers.
The discovery that most of the laws show states playing a supportive rolefor national policy designs does not mean that instances of state confronta-tion and intergovernmental conflicts emerging from the immigration policydomain are insignificant or that states will have no leadership role in shapingnational immigration policy. The bulk of state laws may be cooperativeresponses to the national policy context, but if a single state like Arizonatakes an extreme position by passing stringent employment and immigrationenforcement laws like LAWA in 2007 or the more recent SB 1070 in 2010,other states will likely follow, particularly because in the continued absenceof federal reform states can claim crises and justify their activism.15 Suchactions influence national policy discourse and have the potential to shapethe content of federal reforms, as Proposition 187 certainly did when Con-gress crafted the 1996 IIRAIRA (Newton 2008). However, it remains to beseen whether Arizona is the future of state–federal relations in this area orwhether the trend of vertical integration continues. What is evident from thisinvestigation of state forays into immigration policy is that what has emergedover the last two decades is a policy complex that increasingly depends onintegration with and cooperation by states.
NOTES
1. California’s Proposition 187 denied social services including emergency medicalcare and public education to unauthorized immigrants. It was struck down in1998 on the basis of preemption (and subsequent appeals were dropped whenDemocratic Governor Gray Davis assumed office). Ten years later, voters inArizona passed Proposition 200, which was modeled on California’s initiative.Having learned from the outcome of 187, the authors of Arizona’s initiative didnot include denial of public education to unauthorized immigrants (the “poisonpill” that ensured the demise of 187) among benefits to be restricted to those whocould not prove citizenship.
2. Like Beyle, my use of the term is intended to flow from Supreme Court JusticeLouis Brandeis’ depiction of states as incubators for policy experiments. JusticeBrandeis did not use the actual phrase “laboratories of innovation,” but made theindication when, in his dissenting opinion in New State Ice Co. v. Liebmann(1932), he wrote, “It is one of the happy incidents of the federal system that asingle courageous state may, if its citizens choose, serve as a laboratory and trynovel social and economic experiments without risk to the rest of the country”(qtd. in Beyle 1988, 134).
3. To offer a concrete example, consider how states have handled higher educationaccess for unauthorized immigrants. A section of the federal 1996 Illegal Immi-gration Reform and Immigrant Responsibility Act (IIRIRA) bars undocumentedstudents from enrolling in public colleges and universities (which fall under statejurisdiction, but which receive federal funds). Many states have replicated federalrestrictions and added their own qualifications to bar unofficial immigrants fromenrolling, but a handful of states have facilitated access for this population ofstudents either by instituting what is essentially a “don’t ask, don’t tell” policy for
matriculation (as is the case in New York State) or by redefining the criteria thatqualifies individuals for in-state residency (for details, see Newton and Adams2009). These laws not only reflect a rejection of the role of facilitator for federalrestrictions on higher education, they are examples of policy innovation becausethey have recast the issue of education access for college-aged immigrants with nolegal status in a manner that is distinct from federal policy in the same area, andthey have broadened the population pool served by public colleges and universi-ties. Both approaches represent innovation relative to federal policy as well asrelative to general policy trends seen among the states.
4. See Henderson v. Mayor of New York (1875) and also the “Chinese ExclusionCases” (Chae Chan Ping and Fong Yue Ting v. United States [1889]).
5. While this is a study of a surge in state lawmaking in the 2000s, federal lawspassed in the mid-nineties would have important impacts on intergovernmentalrelations in the area of immigration. In following years, there was a majororganizational restructuring at the federal level in 2002 with the creation of theU.S. Department of Homeland Security, which is why the agency references andsources from 2002 on switch from the Immigration and Naturalization Service tothe U.S. Department of Homeland Security (DHS).
6. The policy areas in Table 1 reflect the coding scheme used by the NCSL with onlyabout five reclassifications conducted to fix clear errors in NCSL coding, suchas a licensing law that appeared under “Health” and the like. Maintaining theNCSL scheme allows for reference to past research using the same scheme aswell as research by others using the NCSL database where this scheme remainsprevalent.
7. See Fix (1991) for a comprehensive evaluation of employer sanctions policy.8. U.S. Department of Homeland Security. Citizenship and Immigration Services
(2007). This section refers to “Basic Pilot/E-Verify” because state laws referenceone or the other depending on whether their laws were passed prior to or follow-ing the DHS decision to rename the program.
9. Illinois’ 2007 law resulted in the U.S. government filing a complaint against it forinterfering with federal employment enforcement efforts (see United States v.Illinois 2007). In August of 2009 the state of Illinois would reverse its positionwhen it passed SB 1133. The law does not mandate participation in E-Verify—rather, it allows for and establishes guidelines for use of the E-Verify system(AILA Info Net, 2010).
10. In a 5-3 ruling the Court decided that the 1986 IRCA provided a licensingexemption to states, and thus the Arizona law’s specific provision to revokebusiness licenses of noncompliant employers was interpreted as falling within theboundaries of what Congress had left to states when it passed IRCA.
11. The term “immigration law enforcement” refers to policies targeting individualswho violate civil or criminal provisions of the Immigration and Nationality Act(INA). Currently, violation of terms of a visa issued to enter the United States isa civil violation of the INA. By contrast, entering the United States withoutinspection at an official port of entry, and committing immigration fraud (i.e.,producing false documentation, marriage fraud, or trafficking/smuggling of indi-viduals into the United States) are all examples of criminal violations of the INA.The terms “illegal alien” or “illegal immigrant” refer to foreigners whose presencein the United States is unauthorized for whatever reason. “Criminal alien,” bycontrast, is a legal category referring to immigrants who may be legally or illegallypresent in the U.S., but who have engaged in criminal activity that is punishableby removal (deportation) (Siskin et al. 2006).
12. Pub.L.No. 104–208 [H.R.3610], Division C of the Omnibus Consolidated Appro-priations Act, 1997. Title I, Subtitle C deals specifically with efforts to expand and
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integrate interior enforcement. Section 133 allows state and local agencies tovolunteer their assistance with immigration law enforcement written agreement(or MOA) with the Attorney General of the United States.
13. This body of thirteen programs is known as “ICE ACCESS” or Agreements ofCooperation in Communities to Enhance Safety and Security.
14. Oregon’s position is a law (Statute 181.850), while New Mexico’s was an Execu-tive Order (E.O. No. 2005-019), and Alaska’s was a resolution (House JointResolution 22).
15. At the time of writing, six states are considering laws like Arizona’s SB 1070.
lina newton is Associate Professor of Political Science at Hunter College, CUNY. Sheis the author of Illegal, Alien, or Immigrant: The Politics of Immigration Reform(New York University Press, 2008).
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