Pratheepan Gulasekaram on Presidential Immigration Federalism

Professor Pratheepan Gulasekaram has authored a blog post on Balkinization titled Presidential Immigration Federalism. The post is Professor Gulasekaram’s contribution to a symposium focused on the book The President and Immigration Law (Oxford University Press, 2020) by Professors Adam Cox and Cristina Rodriguez which addresses the centrality of the president to immigration law and presents a model in which a presidential administration may both invite state and local participation in immigration enforcement and, conversely, end state enforcement efforts that are inconsistent with the administration’s policy choices. Professor Gulasekaram argues in his post that the Supreme Court’s recent decision in Kansas v. Garcia (U.S. 2020) complicates the immigration federalism analysis that Cox and Rodriguez develop in their book, shifting the balance in favor of treating subfederal entities as co-sovereigns independent from presidential control. In Kansas, the Court held that federal law did not preempt state fraud and identity-theft statutes used to prosecute noncitizens accused of using false identity information in seeking to secure employment. Although the Trump administration argued against federal preemption, Professor Gulasekaram suggests that Kansas might be read as extinguishing the role of presidential prerogatives in immigration federalism. He cites in particular to portions of the Court’s opinion rejecting a possible conflict with executive enforcement priorities as a sufficient basis for federal preemption and emphasizing instead that the immigration code must be central to preemption analysis. Professor Gulasekaram argues that Kansas “moves interested states from the periphery of immigration enforcement closer to its center, at least in the context of employment regulation. Far from “sidelining” the states, the Trump administration appears to have helped unbind them in ways that were jealously guarded by prior presidents.”