Perspective: The Battle Over Immigration Policy

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This past decade has seen intense federal-state contestation over immigration policy. Texas’s successful attempt to sue the Obama administration in 2014 over DAPA—a policy meant to shield some undocumented parents of American children from deportation—opened the floodgates in the courts.

Today, dramatic intervention by state governments into federal immigration policymaking has become routine. During the Trump administration, so-called “blue states” like New York and California were at the helm, suing to enjoin a slate of policies, from the travel ban to the border wall to the decision to rescind DACA, a policy designed to protect immigrant youth from deportation. Now, under President Biden, the shoe is on the other foot, with so-called “red states” leading the charge.

The Supreme Court recently issued a decision aimed at curbing state-initiated litigation. The Court held in United States v. Texas that Texas and Louisiana lacked a “judicially cognizable interest” in challenging the federal government’s immigration enforcement guidelines.

It remains to be seen what impact the Court’s decision will have on attempts by state governments to harness the power of federal courts to make their mark on immigration policy. Justice Kavanaugh’s opinion for the Court made clear that the decision should not be interpreted as foreclosing every challenge “involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.” Notably, the Court distinguished between the policy under review and initiatives like DACA, which the Court characterized as a policy that paired nonenforcement with the “provision of legal benefits” like work authorization and Medicare eligibility. That exception as well as other possible exceptions to the Court’s analysis suggest that the fight over state standing is far from over.

Beyond their creative use of the federal courts, states are also asserting themselves in other novel and aggressive ways. Florida and Texas made headlines in the past year over their efforts to bus and fly immigrants to northern cities like New York and Washington D.C., with the ostensible goal of more equitably sharing responsibility for arriving asylum-seekers. 

Another escalating federal-state conflict is playing out at the Rio Grande, with Texas setting up razor wire and buoys as barricades. Texas claims these physical barriers are necessary to secure its borders and protect its sovereignty. This time, it’s the federal government that is suing to block Texas from taking matters at the border into its own hands.

The events of the past decade make clear that the stakes are not just the “what” of immigration policy but the “who.” Today, states on both sides of the aisle are unwilling to stand by idly as immigration policy is set—and reset—at the national level. This persistent dynamic upends the conventional wisdom that immigration regulation falls within the exclusive purview of the federal government. The pitched legal battles lay bare the reality that not just specific policies, but also the prerogative to make immigration policy in the first place, are up for grabs.

Assistant Professor Aadhithi Padmanabhan directs Maryland Carey Law’s Federal Appellate Immigration Clinic, which is part of the Chacón Center for Immigrant Justice.