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Lack of congressional action on immigration has created inconsistencies in states, local governments, study finds

Monday, August 20, 2018

LAWRENCE — The failure of Congress in the past decade to chart a consistent course for national immigration policy has given state and local governments stronger incentives to challenge the federal government on immigration issues, according to an analysis by a University of Kansas political scientist.

"While the federal government has ultimate legal authority over immigration policy, it is significant that states and local governments are increasingly creating their own immigrant policies that don't override federal de jure authority but are a de facto challenge to that authority," said Gary Reich, associate professor of political science.

Publius: The Journal of Federalism recently published his article "Hitting a Wall? The Trump Administration Meeting Immigration Federalism." He surveyed recent state policies surrounding immigration and found that partisanship and ethnicity remain important factors in exploring the growing policy divergence across states.

Ideologically conservative and Republican-leaning states have passed the most restrictive immigration policies, while more liberal, Democratic-leaning states have pushed more immigration-friendly legislation, for example.

Reich said it is important to view these developments against the backdrop of President Donald Trump's hardline agenda that has included pursuing a program of stepped-up arrests of unauthorized immigrants, cuts in legal immigration and refugee admissions, punitive sanctions of so-called "sanctuary" cities and states, and a request to fund construction of a wall along the border with Mexico.

Reich said that while President Barack Obama's policy goals regarding immigration were much different than Trump's, both administrations found that state and local governments could undermine their agendas.

"While it is good news to those who appreciate the challenges that some states and local governments are offering to Trump's executive actions, the flip side is that some states and counties are moving in support of Trump's initiatives," Reich said. "Also, many of those same states sued or challenged the Obama administration over its pro-immigrant initiatives. So, state and local policies are diverging more widely while immigrant policymaking becomes more politically charged."

He wrote the article before the recent furor over the Trump administrations child separations at the border, but the episode offers an example of the current policymaking dynamic, Reich said.

"The president tries to unilaterally enact a policy change, but that change is challenged in federal court," he said. "In this case, 17 states have filed a lawsuit challenging Trump's child separation policy. This pattern of executive action, followed by state and local legal challenges, became established in the last half of the Obama administration."

The current dynamic leads to wide differences in how states enforce immigration policy, which creates unintended consequences, Reich said.

First, policy decentralization can create conflicts within different jurisdictions.

For example, some counties in California have begun passing "anti-sanctuary" policies that seek to challenge the California state law that says nonviolent, unauthorized immigrant detainees cannot be held solely for the purpose of being transferred to U.S. Immigration and Customs Enforcement officers, he said.

"Secondly, there are concerns that where local law enforcement officials begin assuming a larger role in enforcing federal immigration law — like arresting or holding immigrants for ICE — it will undermine needed trust and support in immigrant communities for the police, resulting in an increase in unreported crimes," Reich said.

And finally, the current policy climate tends to erode the role of Congress as a legislative institution and invites presidents to encroach on that role via executive actions.

"This tends to create more partisan and legal conflicts surrounding immigration policy," Reich said. "And it lessens the possibility of anything like a comprehensive immigration reform emerging."

Photo: U.S. Customs and Border Patrol agents on duty in Arizona at the Port of Nogales. Credit: U.S. Government Work