Ohio State Law Journal
Pratheepan Gulasekaram, Immigration Enforcement Preemption, 84 Ohio St. L. J. 535 (2023), available at https://scholar.law.colorado.edu/faculty-articles/1618.
The Supreme Court's 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona's omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court's approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas's prosecutions of noncitizens who used stolen identities to procure employment in violation of federal immigration law. In so doing, the majority opinion took aim at Arizona's central premise, rejecting the relevance of presidential enforcement in immigration preemption.
This Article provides an urgently needed reappraisal of immigration preemption in the wake of Kansas. My primary claim is that immigration preemption requires a framework that accounts for the diminishing relevance of formal law, the discretionary enforcement options available to federal authorities, and the inherent liabilities associated with unauthorized status. I argue that presidential enforcement practices as a distillation of competing statutory values, congressional appropriations, executive policy preferences, and allocation of agency resources limn federal policy for immigration preemption purposes. In defending this claim, this Article recasts immigration preemption decisions from the past fifty years, revealing a long-standing judicial concern for federal enforcement practices. Second, this Article critiques Kansas for discounting federal enforcement practices, and defends a return to Arizona-like jurisprudence. Finally, it argues that this approach will not unduly aggrandize judicial or executive power, or imbalance federal-state authority over criminal enforcement.
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required.