In May 2007, Encarnacion Bail Romero, mother of Carlitos Romero, and an undocumented worker in Missouri, was arrested at a poultry plant by Immigration and Customs Enforcement agents during an immigration raid (Gigler, Ross, & Hill, 2012). While Romero was incarcerated for an immigration-related law that the Supreme Court later struck down as unconstitutional, the State of Missouri terminated Romero’s parental rights and granted the adoption of Carlitos to a Missouri couple (Cambria, 2012). After Romero exhausted all legal options, the adoption was upheld by a Missouri Juvenile Court (Ross & Hill, 2012). Romero’s case is not an isolated incident, as Wessler (2011) found that more than 46,000 parents of U.S. citizen children were removed from their children in the first half of 2011, and at least 5,100 children of detained or deported undocumented immigrants are in U.S. foster care. These types of cases highlight the complexity of intergovernmental relations in a federalist system, existing precisely because of the gaps between the patchwork of federal, state, and local immigration laws and policies. Immigration policy gaps exist because federal, state, and local policymakers disagree over both the aims and means of immigration policy and because federal policy consequences are borne by state and local governments in the form of an unfunded mandate, giving rise to immigrant federalism caused by active state and local governments seeking to create change.
Hoefer, Rytina, and Baker (2012) estimate that there are 11.5 million unauthorized immigrants living in the United States, the majority of which are from Mexico and Central America. Extreme estimates by conservative, anti-immigration think tank FAIR, suggest that undocumented immigrants cost $113 billion annually, 76% of which is borne by state and local governments (Martin & Ruark, 2010). Although, the Congressional Budget Office (2007) found that while the costs to state and local governments exceeded the revenues from undocumented immigrations, the budgetary impact was modest. Furthermore, and Shafritz, Russell, and Borick (2011) and Hanson (2007) both recognize that undocumented immigrants are positive for the U.S. economy. Why then are state and local governments more active in the legislation and regulation of immigration?
While the lack of reliable statistics give fuel to differing partisan perspectives on the immigration debate, the unequal budgetary burden placed on state and local governments make illegal immigration “the mother of all unfunded mandates” (Shafritz, et al., 2011, p. 164). It is therefore, little surprise, given both the economic burden and a lack of clear direction from the federal government, that state and local governments are seeking a rearrangement of immigrant federalism (Huntington, 2008). In fact, Huntington (2008) argues that the immigration debate should be considered through a lens of federalism to determine proper allocation of power between the various levels of government, rather than having the federal government preempt all immigration law and policy decisions. Huntington’s (2008) perspective echoes the notion of incremental decision making inherent in a federal system that Shafritz, et al. (2011) consider “integral to democracy” (p. 140). Indeed, the tendency towards incrementalism may be one of key reasons for lack of clear immigration policy from the federal government.
Shafritz, et al. (2011) note that in 2007, “at least 1,100 immigration bills were submitted by state lawmakers” (p. 164). Some of the new legislation is aimed at making illegal immigration less favorable in the jurisdictions of local lawmakers, while other localities enact legislation to make illegal immigration more favorable (Huntington, 2008). Where some lawmakers are seeking to discourage illegal immigration to reduce the economic consequences of the unfunded mandate, others are seeking to encourage immigration in order to grow their local economies. There are also some who consider anti-immigration a thinly, veiled attempt to advance a nativist and ultimately racist agenda (Zeskind, 2005). Indeed, history would suggest that immigration policy has it roots in a discriminatory agenda (U.S. Commission On Civil Rights, 1980). It is clear that differing policy actors have conflicting views on the aims of U.S. immigration policy, and likely the means. It is equally clear that the federal government must consider the various policy aims of constituent governments, while also assuring the needs and interests of minority or weaker groups are protected. It appears to this author that the federalist system of government is both the cause of the slow progress in immigration reform, and responsible for the benefits of the existing immigration policy to various constituents.
Despite the history of incrementalism inherent in a federalist system, the immigration debate has started a new chapter in what appears to be a continual redefinition of federalism to determine where legislative and administrative power resides in immigration policy. As federal immigration policy consequences are largely borne by state and local governments, the last decade has seen the rise of immigrant federalism creating a patchwork of federal, state, and local immigration laws that clearly disagree over both the aims and means of national immigration policy. While the immigration federalism policy debate appears far from over, the urgency to improve immigration policy is clear, because existing policy allows the U.S. citizen children to be involuntarily taken from their undocumented immigrant parents, a situation that should never occur in a country built on the principles of life, liberty, and the pursuit of happiness.
Cambria, N. (2012, July 19, 2012). Judge gives Missouri couple custody of illegal immigrant’s child Retrieved August 4,, 2012, from http://www.stltoday.com/news/local/crime-and-courts/judge-gives-missouri-couple-custody-of-illegal-immigrant-s-child/article_8d7ca32d-94e9-54f4-91a8-7512476da753.html
Congressional Budget Office. (2007). The Impact of Unauthorized Immigrants on the Budgets of State and Local Governments. Washington DC: U.S. Congress: Congressional Budget Office Retrieved from http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/87xx/doc8711/12-6-immigration.pdf.
Gigler, L., Ross, B., & Hill, A. M. (2012, February 1, 2012). Adoption Battle Over 5-Year Old Boy Pits Missouri Couple Vs. Illegal Immigrant Retrieved August 4, 2012, from http://abcnews.go.com/Blotter/adoption-battle-year-boy-pits-missouri-couple-illegal/story?id=15484447 – .UB1uVI6_FLo
Hanson, G. H. (2007). The economic logic of illegal immigration. Council on Foreign Relations, 26(April 2007), 1-52.
Hoefer, M., Rytina, N., & Baker, B. (2012). Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011. Washington, DC: Department of Homeland Security Retrieved from http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf.
Huntington, C. (2008). The consistutional dimension of immigration federalism. Vanderbilt Law Review, 61(3), 787-853.
Martin, J., & Ruark, E. (2010). The fiscal burden of illegal immigration on United States taxpayers (pp. 1-95). Washington DC: Federation for American Immigration Reform.
Ross, B., & Hill, A. M. (2012, July 18, 2012). Tug-of-Love: Immigrant Mom Loses Effort to Regain Son Given to US Parents Retrieved August 4, 2012, from http://abcnews.go.com/Blotter/immigrant-mom-loses-effort-regain-son-us-parents/story?id=16803067 – .UB1t-o6_FLo
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