Can States Regulate Immigration? Part 1
State and local regulatory initiatives

16 Jul 2007 in Regulatory Economics, Regulatory Policy

Recent federal legislation to change immigration law foundered in the Senate. We posted the original bill to our document library because it was not online elsewhere. We then attempted to perform an objective analysis of its components. We were hampered by its length and complexity, the speed at which the debate was proceeding, and frequent (and unreported) changes in its text. Now that the dust has settled we can examine some of the provisions of the major bills. Leaving aside what ought to be done about immigration, what effects would these provisions have had if they were enacted?

This question is not merely academic, because immigration legislation will be back.

Also, some state and local jurisdictions have debated (or enacted) immigration legislation of their own. These efforts are inherently constrained by limited jurisdiction over what is clearly a federal issue. Nonetheless, state and local governments are taking action because they perceive federal policy to be wrong-headed or ineffective.

We have found three types of provisions in state and local regulatory enactments:

Attempts to regulate immigration directly, or to regulate the actions of federal agencies. Generally, these provisions interfere with or usurp federal law. This is true both for actions that would restrict illegal immigration more rigorously than federal law or refuse to cooperate with federal immigration enforcement.
Directives to state government agencies and their contractors. States clearly can regulate their own affairs insofar as these regulations do not supersede or conflict with federal law. They can, for example, either encourage or discourage illegal immigration by what orders they give to state agencies.
Regulations governing market or nonmarket transactions in which immigrants participate. Examples include employment, housing, education, welfare, and similar areas.

In this series we will report on various state and local efforts to regulate immigration. As always, we will refrain from commenting on what ought to be done and only analyze what is likely to happen.

To accommodate this series, we've created a new topic area for immigration and reclassified previous posts accordingly.

STATE ACTIONS ON IMMIGRATION