How to Break the Immigration Policy Impasse (3): State Wars of Attrition

By Stanley Renshon and Stanley Renshon on June 28, 2012

America's 50 states have famously been called "laboratories of democracy", an idea first formulated in 1932 by Justice Louis Brandeis. He wrote "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

His view, in theory, has much to recommend it. According to constitutional scholar Michael Greve, "Much can be said for the piecemeal diffusion of new policies: when we do not know what we are doing, it is best not to do it everywhere, all at once. A state-based process facilitates gradualism and, therefore, feedback and institutional learning. Successful state and local experiments with airline deregulation, welfare reform, and school choice taught valuable lessons, built public confidence in innovative policies, and provided a testing ground for social scientists' models and policy recommendations that might well have gone unheeded in a centralized political environment."

That's the good news. The other news is that Brandeis, and many Supreme Court justices who followed his lead, had a "tendency of subordinating federalism to progressive dictates and statist presumptions." As a result, "experimentation" has, with certain expectations (school choice and welfare reform), generally run in the "progressive" direction.

The devolvement of immigration policy to the state level has given the term "laboratories of democracy" a whole new meaning, and certainly not one envisioned or preferred by Brandeis or his followers. The devolution of debate down to the state and even the local level have nothing to do with "experimentation", that is, as in the federal government trying out what it might do once it learns from states what works. Rather, states have become an area in which unresolved immigration policy debates are fought out in the absence of any successful "winner take all", attrition, or grand bargain strategy at the federal level.

States have become laboratories of conflict as well as democracy.

Yet, states have also become "laboratories of democracy" in another, unanticipated way as well. The immigration policy standoff at the federal level has had the virtue of democratizing the immigration debate. Advocates on both sides have focused their efforts on moving state policies in their direction — though with mixed and complicated results. And in doing so citizens and advocates on both sides of the debate have had the experience of organizing for their views in a more local, and arguably for ordinary Americans, more responsive venue.

Those advocating more liberal legalization policies primarily pushed their views through efforts to get state versions of the "Dream Act". These efforts focused specifically on allowing young illegal immigrants who had graduated from a state high school, or its equivalent, to be able to pay in-state college tuition. Twelve states to date have taken this step, while six states have specifically voted not to grant such relief. The rest have not taken any legislative action.

Those who are concerned with the decade-long surge in illegal immigration and its ramifications for America's economic, political, and social fabric have also made efforts at the state level to accomplish what they feel the federal government has been unable or unwilling to do, namely ensure that only those who are legally entitled to live, work, and receive benefits here are able to do so. They have had some major successes, most notably in Arizona, but also in Alabama, Georgia, Indiana, South Carolina, and Utah.

To give some further idea of the states as laboratories of immigration conflict consider that in a six-month period, January-June 2011, states considered 53 omnibus bills that required such things as having police officers verify a person's immigration status during a lawful stop, requiring immigrants to carry alien registration documents, and adding state penalties for harboring, transporting, and/or smuggling of illegal immigrants. Other omnibus bills address issues of verification of legal status for public benefits and driver's licenses, use of E-Verify by public or private employers, and immigration law enforcement provisions, such as authorizing agreements with the U.S. Department of Homeland Security.

State immigration policy disputes have in turn devolved to the local level where municipalities, towns, and cities wrestle with policies regarding day laborers, housing crowding, and even voting by illegal immigrants.

Given that there are 50 states, each its own mix of Republicans and Democrats controlling legislative or executive power, different conservative/liberal leaning electorates and state cultures, and activist or restrained judiciaries, it is no surprise that any "winner take all" immigration policy hopes at the state level are doomed to failure.

But when all else fails, aren't our state and federal courts the final settling authority?


Next: How to Break the Immigration Policy Impasse (4): Courts of Last Resort? or view a list of the entire series.