Immigration Federalism: Red and Blue

In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of “renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.

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4 Responses

  1. Matt says:

    I’m not completely sure I’d agree that New York is here “rebuking federal immigration policy” since what Patterson is doing is explicitly authorized in the law as it’s written. I suppose that this is a bit unexpected, but to my mind it’s not obviously more, and probably less, in line with the letter of the law than the claim made by the federal government, and upheld by the Supreme Court, that something can be an “aggravated felony” without actually being a felony.

    (Some of what Arizona is doing is also authorized by federal law, though I think some other aspects clearly go beyond what’s explicitly authorized.)

  2. Robert Schapiro says:

    Thanks for your comment Matt. You make the good point that New York is actually implementing part of the federal statute. Governor Paterson disagreed with what he understood to be the policy underlying the statute. One wonders if the drafters of the statute contemplated pardons being issued specifically for the purpose of avoiding deportation.

  3. Matt says:

    Hi Robert- I suspect that you are probably right that the clause in the law wasn’t put there with the intent that pardons would be used expressly to negate the immigration implications of a violation.