In her essay "Law and Borders," Cristina Rodríguez prefaces her argument for immigration federalism with the following disclaimer: “Leaving immigration policy to the states may sound scary. But not every state is Arizona, and immigration federalism can work.” I love the use of this disclaimer, how it anticipates Arizona's S.B. 1070 as an objection for immigration federalism by drawing attention to the way fear has the potential to shape public opinion and policy-making.
Arizona’s S.B. 1070 practices have certainly led to a number of questionable and discriminatory practices. This is especially the case under the context of section 2(b), which grants local law enforcement officials the power to request papers from individuals whom they suspect have illegally entered the United States. While Arizona's ambiguous interpretations of policy are, in fact, “scary,” Rodríguez is able to both empathize with Arizona as a state with institutional nuances while remaining critical of its actions. She suggests that all states do not necessarily need to adopt one particular ideology on immigration, and she takes comfort in "ideological diversity," in which states practice democracy through diverse policy-making.
Ultimately, it is fear that Rodríguez is contending with in this essay, particularly how fear can be used politically to diminish the tenth amendment and place policy-making for states in the hands of the federal government. "It would be a mistake," Rodríguez writes, "to assume the federal government has a monopoly on virtue.... [W]hen it comes to matters such as integration policy, states and localities should be in the lead" (55).
To make a case of immigration federalism, Rodríguez examines recent movements in policy-making. She shows how marriage equality, as an example, first gained traction in the states: "State courts, simultaneously calling on their own traditions and drawing on developments in other courts, have rigorously tested the arguments in favor of same-sex marriage prohibitions and mostly found them wanting" (56). This traction, she suggests, gave the federal government an opportunity to act, which happened when Eric Holder decided to stop defending the Defense of Marriage Act (DOMA).
Rodríguez, however, sees the possible federal declaration of equal marriage rights as a danger, since the federal government would be imposing a norm on a diverse set of states and localities. This is a rather provocative idea, not intended to speak towards equal marriage in itself, but rather towards the danger of the federal government imposing civil norms on a diverse set of states and localities. What Rodríguez expresses here is that federalism and nationalism can function in a dynamic relationship, even when the federal government exerts power over the states. "Federalism," Rodríguez writes, "provides a framework for managing the aftermath of ['nationalizing moments']" (57). Through federalism there is a means to rupture nationalized agendas or policy. It is particularly useful here to return to Rodríguez's disclaimer, "not all states are like Arizona," and in the case of marriage equality, to add that not all states are like Indiana.
While the federal government seems to have much to say about immigration policy, Rodríguez notes that now there are many policy-makers suggesting that the federal government play a more active role in the integration policy of immigrants. She writes, "To prevent integration policy from becoming an ideologically driven project, the federal government should play the role of funder and coordinator, rather than the driver of national policy..." (64). Here, she reinforces her argument that the states are in a better institutional place to take on the challenges of immigration integration, and argues that the federal government might help support state initiatives. She cites a number of exciting projects, such as that of Governor Rick Snyder of Michigan who envisioned an integration plan that would call for immigrants to help revitalize Detroit.
Federalism poses a number of issues for immigrants and individuals with no citizenship. For immigrants, already disoriented, seeking or pursuing integration in the United States, I could see how navigating a sea of diverse ideologies, states, and constitutions would further disorient them, even with mobility protection. Still, Rodríguez demonstrates just how volatile policy-making can be. Early in her essay, she shows how in California at the very same time that integration policies were extended to immigrants, more immigration policies were enacted. Immigration federalism, then, might be the most effective route because it would allow for a multiplicity of both theoretical and methodological policies to be applied, thus offering states an opportunity to learn from each other, rather than heeding and resisting a nationalistic approach. As Rodríguez writes, "The United States consists of a myriad of overlapping political communities that simultaneously map onto and transcend jurisdictional boundaries. Federalism offers a means through which we might come to a compromise among those communities..." (65).
- Raul Palma
Rodríguez, Cristina. "Law and Borders." DemocracyJournal.org. Summer 2014: 52-65.