Title

The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power

Abstract

May the federal government require local governments to cooperate with the enforcement of immigration law or other federal scheme? Or may local governments constitutionally refuse to provide that cooperation?

I use immigration law enforcement as a case study to argue that the current legal framework, which allows the federal government to mandate local cooperation, ignores the significant federalism harms that federal cooperation laws impose. And these federalism harms are not simply limited to the immigration field. In other areas where federal and local governments disagree (e.g., medical marijuana, stem cell research, and physician-assisted suicide), there is similar potential for conflict and resulting federalism harms. Rather than apply the current bright line Printz/New York rule that ignores these federalism harms, I suggest using an intermediate balancing test, where both federal and local sovereign interests are considered.

Disciplines

Constitutional Law | Immigration Law

Date of this Version

September 2005