Much of the commentary surrounding the court’s decision, announced Thursday, has focused on its consequences for the lives of upwards of 4 million immigrants who, by definition, are living in mixed-status households. Meanwhile, political analyses of the decision have focused on topics ranging from the potential limits of executive action to its consequences for the presidential election, particularly in the context of Latino mobilization and an unfilled Supreme Court vacancy.
But United States v. Texas also implicates a less-discussed, but critical, issue: the growing involvement of states in setting immigration policy. In this instance, a coalition of states led by Republican governors and attorneys general challenged DAPA in a federal trial court in Texas, which issued a preliminary injunction in the case that was subsequently upheld by the U.S. Court of Appeals for the 5th Circuit.
The Supreme Court deadlock means that the 5th Circuit’s ruling remains in force, keeping DAPA blocked. Now, the case goes back to the same trial court, which will make a decision as to whether the preliminary injunction should be made permanent and whether a trial on the merits is required. Effectively, one of the signature policy achievements of the Obama administration has been dismantled by a consortium of states, led by Texas.
The legal and political wrangling over DAPA reflects a broader surge in state involvement in immigration control. As we describe in our book “The New Immigration Federalism,” immigration policy was the near-exclusive domain of the federal government for nearly a century, from 1875 through 1965. Since then, however, states and localities have become more involved in questions of immigration control. This trend has accelerated in the last decade, with California and Arizona leading the way on opposite ends. California has increased various benefits to undocumented residents and limited its cooperation on federal enforcement; Arizona has prevented its cities from enacting similar policies of noncooperation and has denied most state benefits to undocumented immigrants.
Occasionally, these federalism conflicts have reached the Supreme Court. At times, the court has enabled greater state control over immigration — for example, allowing Arizona to penalize employers who hire undocumented immigrants in U.S. Chamber of Commerce v. Whiting. At other times, however, it has limited state power, such as in Arizona v. United States in 2012, when the court ruled that Arizona cannot create state-level penalties for immigration violations.
The Texas case, however, presented constitutional questions more complex than the usual state vs. federal conflicts in immigration law, which typically involve states or localities passing laws that are then defended on state autonomy grounds.
By comparison, Texas involved a three-way fight among the president, Congress and the states. While many in Congress — specifically its GOP leadership — decried DAPA as the president’s usurpation of their chamber’s legislative function and as imperial lawmaking, they were ineffective in stopping it. Although Congress could have legislated to override the program, or fund greater enforcement, it has been unable to do so.
Instead, states led the charge. To find their way into federal court, Texas alleged financial injury based on its claim that applications for driver’s licenses by DAPA recipients created significant costs for the state. Once in court, however, the states’ argument raised the same claims that the Republican leadership in Congress would have made; chiefly that the president violated the statutory limits set by Congress and was effectively lawmaking.
Thus, as we argue in a recent article, this fight over DAPA is part of a growing trend of state and local resistance, fought along partisan lines, to federal executive programs on immigration. The same dynamic emerged when Obama announced his plan to accept Syrian refugees in 2015 or to resettle Central American asylum seekers in 2014. In both instances, state resistance meant the selective application of executive action in more friendly jurisdictions.
However, state involvement has not always meant resisting presidential action. Indeed, in the case of Deferred Action for Childhood Arrivals (DACA), many states deepened and solidified the president’s executive action by enacting complementary legislation such as expanded access to driver’s licenses, health insurance and educational opportunities to DACA beneficiaries. Both reactions from the states, resistance or acceptance, typically fall along party lines.
Importantly, Texas represents a new moment in immigration federalism. While previous state resistance meant selective application of executive action — strong in some places and weak in others — the state plaintiffs here were able to use a federal court to dismantle a major federal administrative policy.
States were not able to just carve out a niche for their own oppositional lawmaking. Instead, they were able to effectively alter the course of a national program. Looking ahead, the result in Texas will probably embolden states to intervene more frequently in large-scale immigration decisions, taking sides in a policy fight that previously was left mainly to Congress and the presidency.
Pratheepan Gulasekaram is associate professor of law at Santa Clara University and a co-author of “The New Immigration Federalism.” Karthick Ramakrishnan is professor of public policy at the University of California at Riverside and a co-author of “The New Immigration Federalism.”