Learning to Live with Immigration Federalism - HeinOnline

Learning to Live with Immigration Federalism PEMER J. SPIRO Evidencing the breadth of the Great Devolution, the states are emerging as major players in immigration law- and policy-making. Recent welfare reform legislation expressly authorizes state-level discretion respecting the status of aliens in this country, eschewing a century of judicially protected exclusive federal authority. State governments will now enjoy, at least in the realm of public benefits eligibility, the capacity to discriminate or not to discriminate--at their option-on the basis of alienage. No longer will the alien's status be fixed only in Washington; no longer will the alien necessarily find herself identically situated from one state to the next. This essay argues that the Personal Responsibility Act presages new possibilities for state-level modulation in immigrant policy that will more efficiently represent wide state-to-state variations in voter preferences and that may ultimately benefit aliens as a group. First, statelevel authority will allow those states harboring intense anti-alien sentiment to act on those sentiments at the state level, thus diminishing any interest on their part to seek national legislation to similarly restrictionist ends. This analysis highlights what I will call the "steam-valve" virtues of federalism in this and perhaps other contexts, under which one state's preferences, frustrated at home, are not visited on the rest of us by way of Washington. Second, delegating responsibilities to the states will not inevitably lead to the lowest levels of protections and benefits for aliens. Under a model of competitive federalism, states will be forced to weigh the assumed savings of anti-alien measures against the costs associated with interstate and international opprobrium provoked by such discrimination.

*

Associate Professor, Hofstra University Law SchooL

This essay isu first presented as a paper at a conference on immigration law held at the Universl, of Connecticut School of Lam April 4, 1997. Thanks to Linda Bosniak Hiroshi Motomura (for among other things the phrase "immigration federalism"), and Gerald Neuman for helpful comments, although I should add that none necessarily agrees with my conclusions.

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Aliens may not have the vote (with very few exceptions), but they often enjoy powerful champions in the form of public interest lobbies and, more notably, foreign governments, corporations, and consumers. A foreign corporation or consumer that perceives a state to be hostile to aliens may choose to buy from or invest in other states on that basis. Some states will still discriminate against aliens; persistent state-tostate variations will more efficiently allocate the burdens of immigration among the states as aliens themselves respond to such variations by moving to more hospitable jurisdictions. But the balance likely precludes a scenario in which all states maximally discriminate within the constraints of federal law. There will be no race to the bottom in state-level immigration policymaking. If these two propositions hold true, they may pose the possibility of expanded state-level authority on immigration matters. One might, on the same reasoning, imagine a prominent state role in the enforcement of federal immigration measures. Where this prospect would have been only a few years ago dismissed out of hand-politically and constitutionally-it no longer seems so implausible; provisions of recent immigration reform legislation suggest that state and local participation in immigration law enforcement may now be welcomed by federal authorities whose resources, even in an era of growing INS budgets, will always be stretched. That devolution could in fact work to the net benefit of aliens as a group makes the new federalism all the more relevant in an area where one might least expect it. I.

STEAM-VALVE FEDERALISM AND IMMIGRATION

As Gerald Neuman has documented, until the end of the nineteenth century, immigration (both interstate and international) was the subject of state-level regulation in the face of a federal legislative vacuum.' With the advent of the first federal statutes in the area, however, the states were by judicial action soon ousted from immigration lawmaking, at least with respect to core decisions regarding the admission and exclusion of aliens.2 This ouster was later expanded to preclude the

1. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993); see also E.P. HUTCHINSON, LEGISLATIVE HISTORY OF AMERICAN IMMIGRATION POLICY 1798-1965, at 396-404 (1981).

2. See Chy Lung v. Freeman, 92 U.S. 275 (1875). On the development of federal exclusivity over immigration, see generally Peter J. Spiro, The States and Immigration In an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121, 134-53 (1994).

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states from adopting almost any discriminatory classifications based on alienage,3 including those which would restrict alien eligibility for public benefits.4 At the same time as state power in the area was reduced to a virtu-

al nullity, federal power was unfettered. In few other contexts has federal action met with so little in the way of judicial constraint, under the doctrine of plenary federal powers.5

Official conduct that would

never be tolerated against an ordinary backdrop---including, for instance, classifications based on nationality6 and legitimacy,7 the use of

undisclosed confidential information as decisionmaking evidence,' and adverse status implications arising from the assertion of core first

amendment rights--has repeatedly survived constitutional challenge. 3. See, e.g., Toll v. Moreno, 458 U.S. 1, 13 (1982) (requiring state to grant in-statc tuition rates to alien otherwise satisfying residency criteria); Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (striking down state restriction on the issuance of commercial fishing licenses to aliens); Hines v. Davidowitz, 312 U.S. 52 (1941) (striking down state scheme for registration of resident aliens). The courts have accepted alienage-based classifications only where substantially related to the definition of the political community. Under this test, states have been allowed to require that teachers, police officers, and the like hold United States citizenship. See generally Harold Hongju Koh, Equality With a Human Face: Justice Blackmun and the Equal Protection of Aliens, 8 HAfLINE L. REv. 51 (1985). 4. See most notably, Plyler v. Doe, 457 U.S. 202 (1982) (striking down state denial of public primary and secondary education to illegal alien children), and Graham v. Richardson, 403 U.S. 365 (1971) (striking down state denial of welfare benefits to legal resident aliens). 5. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) ("'over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens") (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). On plenary powers, see generally STEPE N H. LEGOMSKY, IMMIGRAmoN AND THE JUDICIARY: LAW AND POLITICS IN BRITAW AND AMEIUCA 177-222 (1987); Peter H. Schuck, The Tran:Sformation of Immigration Law, 84 COLUM. L. REV. 1 (1984). 6. The Immigration and Nationality Act of 1952, Pub. L No. 105-15, 66 Stat. 163 (codified as amended in scattered sections of 8 U.S.C.) [hereinafter "INA"]. provides for a ceiling on annual immigration from any given country. See Id § 202. In 1995, this per-country limit stood at 28,016. See U.S DEP'T OF STATE, BUREAU OF CONSULAR AFFAIRS, REPORT OF THE VISA OFFICE 1995, at 6 (1997). As a result, visa applicants from such "oversubscribed" nations as the Philippines, India, and Mexico faced substantial delays in securing visas relative to similarly situated applicants from other states. See, e.g., Immigrant flsa Preference Numbers for March 1997, 74 INTERPR'Ra RELEASES 312 (1997) (documenting longer visa waiting periods for qualified applicants from those nations). 7. See Fiallo, 430 U.S. 787 (upholding provision of the INA denying preference status to illegitimate fathers or their children even where such status was extended to illegitimate mothers and their children). 8. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (both upholding exclusion on the basis of confidential information not disclosed to aliens); see also INA § 504(c)(3) (providing for removal upon probable cause finding that resident alien is a terrorist, even where determination is based on classified information not provided to alien). 9. See Kleindienst v. Mandel, 408 U.S. 753 (1972) (upholding denial of visa on grounds

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Save for the procedural rights afforded aliens facing criminal charges or deportation, the federal government has enjoyed a virtual carte blanche on immigration matters.'" This extreme contrast in federal-state powers sets the backdrop for the possible virtues of what I would call steam-valve federalism in the realm of immigration lawmaking. For it is not that the states are politically powerless on immigration matters even where they may be constitutionally disabled from acting on their own. They are of course able to assert their interests through representatives in Congress. And where states are able successfully to assert their interests on immigration-related matters, they may do so without much fear of subsequent judicial disapproval of any legislation secured at the federal level. They move from a context in which judicial discipline is extremely stem to one in which it is most relaxed. An analysis of immigration federalism thus cannot stop with a simple rule against state-level action in the area. One must look to the consequence of such suppression and the possibility that frustrated state preferences may actually prompt the effectuation of anti-alien measures at the federal level. One might expect that the preferences of one state would be modulated or even nullified by the preferences of others, so that no one state or small group of states could commandeer federal tools to their own ends, where the courts have blocked them from pursuing such ends as mere states. But history has proved otherwise. In two major episodes-that surrounding the restrictionist laws of the late nineteenth century, and the one we are witnessing today-highly restrictionist

that applicant advocated "doctrines of world communism"). 10. This is not to say that the courts have continued to turn a completely blind eye to executive and legislative action in the area, as they once clearly did, see, e.g., Hiroshi Motomura, Immigration Law Afier a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE LJ. 545 (1990) (concluding that the courts have im-

posed significant constitutional-type constraints on the political branches), nor that Congress itself has left aliens bereft of rights or immigration law stripped of all principle.

Indeed, Con-

gress has on several occasions amended laws to provide such rights or benefits even after the Court has found them constitutionally unnecessary. It is also possible that the rule of judicial deference may weaken in the post-Cold War era, see, e.g., American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995) (overturning deportation on first amendment grounds); the Supreme Court now has on its docket a case which could mark a watershed in the history of plenary powers. See Miller v. Christopher, 96 F.3d 1467 (D.C. Cir. 1996) (applying Fiallo v. Bell to uphold immigration law

discrimination against illegitimate fathers), cert. granted sub nom. Miller v. Albright, No. 961060 (Apr. 28, 1997); see also Louis HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 293-97 (2d ed. 1996). It remains the case, however, that the courts have to date remained exceedingly hesitant to interfere with immigration lawmaking and enforcement.

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initiatives at the federal level have been driven by a single state. In both cases, it has been California's intense anti-alien sentiments that have led the rest of the country to restrictive federal legislation. For those who seek instrumentally to use the principle of federal exclusivity toward greater protection for aliens in this country, these examples must provide at least an important cautionary lesson and should, I think, prompt reexamination of the exclusivity principle altogether. In the first, an economic downturn on the heels of a massive influx of Asian laborers prompted Californian lawmakers to enact measures aimed at discouraging further Asian immigration into the state, as well as disadvantaging those already resident. This legislation gave rise to the foundational cases excluding the states from regulating immigration, decisions grounded on both equal protection" and exclusive federal powers rationales.' But defanging Sacramento did not stop California from pressing its perceived imperatives in Washington. Rebuffed by the courts when it acted independently, California was readily able to secure federal legislation to the same effect, in the form of the infamous Chinese exclusion laws. 3 As Mary Roberts Coolidge described the legislative genesis of those constraints on Asian immigration, When nearly all the legislation of the Coast States against the Chinese had been declared unconstitutional or a violation of treaty, it was evident that effective measures could only be obtained by the negotiation of a new treaty and by federal legislation. The exigencies of politics had already made the Chinese question the principal plank of both party platforms in 11. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (striking down state measure regulating commercial laundries in manner discriminatory against Chinese aliens). 12. See, e.g., Chy Lung v. Freeman, 92 U.S. 275 (1875) (striking down state statute limiting types of immigrants allowed into the United States because the statute invaded the right of Congress to regulate commerce with foreign nationals); In re Parrott, I F. 481 (C.C.D. Cal. 1880) (striking down prohibition on the employment of Chinese expressly intended to discourage their immigration into the state); Ex parte Ah Cue, 35 P. 556, 557 (Cal. 1894) (striking down state law prohibiting "the coming of Chinese persons into the state"). 13. See Act of May 5, 1892, 27 Stat. 25 (suspending immigration of Chinese for period of 10 years, as well as providing for deportation of Chinese who could not prove that they legally resided in the United States as of that date); Act of Sept. 13, 1888, 25 Star. 476 (prohibiting entry of Chinese laborers); Act of May 6, 1882, 22 Stat. 58 (suspending Chinese immigration for period of 10 years). For the historical context of these measures, see Lucy E. SALN"R, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMwIlGRATION

LAW 1-32 (1995). An 1882 act also mandated the exclusion of paupers, convicts, and other "undesirables," see Act of Aug. 3, 1882, 22 Stat. 214, in provisions that were similarly (albeit less dramatically) driven by a single state's interest, in this case, that of New York. See SALYER, supra, at 5-6.

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the State, and an organized effort, therefore, was begun by the Pacific Coast Congressmen to obtain restriction of Chinese immigration from the National Government. 4 As is true today, the West was thought to hold the balance in upcoming presidential contests. 5 The Chinese exclusion laws themselves were plainly tailored to address California's interests. It was not all immigration that was curtailed, only that from Asian sources; Asian immigration was what sparked riots in California at the same time as the issue, while not insignificant, was hardly front-page news in the East.' 6 The more recent drama on the immigration front presents a haunting iteration of the Chinese exclusion episode. Once again, it was California that harbored a driving resentment of the burdens posed by high immigration levels in a circumstance of general economic difficulties. Once again, the state attempted to take matters into its own hands, in the form of Proposition 187.' Although not a direct regulation of immigration-in the sense that it did not deny admission to the state of those legally admitted to the country, nor independently enforce against those whose presence in California was illegal under federal law-Proposition 187 was plainly intended to help reverse the tide of undocumented immigrants into the state by both requiring various state officials to report such aliens to the INS"8 and denying almost all public benefits to them, including social services, non-emergency healthcare, and public primary and secondary education.' 9

14. MARY ROBERTS COOLIDGE, CHINESE IMMIGRATION 96-97 (1909); see also HUTCHINSON, supra note 1, at 63-83 (recounting congressional activity relating to the Chinese exclusion measures). 15. See COOLIDGE, supra note 14, at 168; SALYER, supra note 13, at 14 (noting that "Pacific Coast, regarded as a 'swing vote' on several issues, gained more national power" in the late nineteenth century); see also FRED W. RIGGS, PRESSURES ON CONGRESS: A STUDY OF THE REPEAL OF CHINESE EXCLUSION 23 (1950).

16. Although many congressmen from other parts of the country voted in favor of Chinese exclusion (as would be expected, insofar as pro-Chinese alien lobbies would not have been significant, and small Chinese communities in Eastern cities may have posed some threat to organized labor interests), support from the West was uniform and opposition was led by a group from the Northeast See SALYER, supra note 13, at 16; see also id. at 261 n.97 (providing a regional voting breakdown for 1882 Act). 17. See League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 787-91 (C.D. Cal. 1995) (reprinting Proposition 187). 18. See Proposition 187 §§ 4-8, reprinted in Wilson, 908 F. Supp. at 788-90 (requiring state law enforcement agencies, public social service agencies, publicly funded health care facilities, and educational institutions to notify INS and state attorney general of undocumented aliens encountered in the course of official duties). 19. See id. §§ 5-8, reprinted in Wilson, 908 F. Supp. at 788-90.

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The ballot measure was in all essential respects immediately enjoined by a federal district court." But that did not, of course, end the story. Not satisfied to await definitive judicial resolution of the matter,

California moved quickly to achieve its objectives in Congress. 2 '

It

apparently succeeded; with the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAJRA")," the state was able to, in effect,

federalize its preferences where those preferences could not be actuated at the state level. Of course, at the federal level it was able to secure

its objectives on a substantially grander scale; not only was the resulting legislation national in scope (and thus presumably more effective

even from the state's perspective), it presented a far more comprehensive attack on the problem, through direct as well as indirect mechanisms. Thus, the federal act beefed up enforcement resources, 23 expanded the definition of deportable and excludable aliens,"' severely constrained agency discretion to regularize the status of such aliens,'s26 denied judicial review with respect to a swath of agency decisions, and increased penalties for immigration law violations.2" The law was

20. See Wilson, 908 F. Supp. at 787 (barring enforcement of most provisions of Proposition 187). More than two years later, the district court judge hearing the case had yet to issue a final ruling subject to full appeal. See Ken Chavez, Lmmakers Bash Judge for Prop. 187 Delay, SACRAMENTO BEE, Feb. 5, 1997, at A4. 21. See, e.g., Frank del Olmo, Muddle Now Yields to Congress, LA. TLES, Nov. 26, 1995, (Op. Ed.), at M5 (concluding that invalidation by district court of Proposition 187 "has virtually guaranteed that Congress will now finish rewTiting the nation's immigration laws"); Faye Fiore, Congressman's ProposalMirrors Prop. 187, L.A. TIMEs, July 19, 1995, at A3 (reporting legislative initiative by California representative Frank Riggs); Ben Sherwood, California Leads the Way, Alas, N.Y. TIMES, Nov. 27, 1994, § 4, at 11 (Op. Ed.). 22. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L No. 104-208, div. C, 110 Stat. 3009-546 [hereinafter "IIRAIRA" (amending INA). 23. See id § 101 (providing for 5000 additional border patrol agents by the year 2001). The total INS budget has doubled over the past four years, see Patrick J. McDonnell & Robert L. Jackson, Panel Urges INS Breakup and Dispersal of Its Tasks Government, L.A. TIMES, Aug. 6, 1997, at A9, surely making it unique among major federal agencies in a era of acrossthe-board federal budget cuts. 24. See, e.g., IIRAIRA § 301 (adding new INA § 212(a)(9)) (dictating excludability of aliens previously removed or illegally present in United States); Id.§ 321 (amending INA § 101(a)(43)) (broadening definition of aggravated felony).

25. See id § 304 (adding new INA § 240A) (providing for cancellation of removal only in .exceptional and extremely unusual circumstances"). 26. See id § 306 (adding new INA § 242) (restricting judicial review of removal orders). See also Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 CONN. L REV. 1411 (1997).

27. See generally IIRAIRA tit. II (enhancing penalties for alien smuggling and document fraud). In only one significant respect was the federal measure less harsh than Proposition 187. Where the latter would have banned undocumented alien children from public primary

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spurred and sustained by Californian interests, and yet of course it will

apply with 28more or less equal vigor in INS districts in San Diego and New York.

In both of these anti-alien episodes, had California been left to its own devices, and allowed to enact its own immigration control measures, there would have been a greatly reduced need and motivation for the federal legislation to the same effect. To deploy a standard public

choice analysis, California in both cases comprised a special interest with an acute concern, in the face of other states whose interests, some against further immigration and some perhaps in favor, were far less pressing. Where one interest group pits an intense preference against the more or less neutral posture of other groups, the intense preference may prevail notwithstanding the absence of genuine majority support sufficient itself to secure legislative action. 9 Even if the polls show and secondary education, the former did not, nor did it expressly authorize the states to engage in such discrimination. The issue was hard fought in Congress, with an amendment to mirror Proposition 187 (sponsored by California Congressman Gallegly) defeated in the face of promised presidential veto. See Eric Schmitt, Conferees Approve a Tough Immigration Bill, N.Y. TIMES, Sept. 25, 1996, at A1S; cf Personal Responsibility Act § 433(a)(2) (codified as amended at 8 U.S.C. § 1643) ("[n]othing in this chapter may be construed as addressing alien eligibility for a basic public education as determined by the Supreme Court of the United States under Plyler v. Doe"). One could argue that the rejection of the public-schooling ban demonstrates the necessity of federal control by way of protecting against extreme state-level action. Two responses are possible, I think. First, the defeat of the Gallegly amendment will not necessarily preclude such discrimination. That will depend on the continued vitality of the Supreme Court's ruling in Plyler, in which the court found unconstitutional the denial of public education to undocumented alien children. As I have argued elsewhere, that ruling rests on tenuous foundations. See Spiro, supra note 2, at 151-53. Second, even assuming that Plyler stands, one must still balance (from the perspective of aliens) the net gain of mandating the provision of education against the net loss presented by other aspects of the federal legislation. See supra notes 23-26 and accompanying text. Assuming that I am correct below in arguing that most states will be inclined not to discriminate against aliens even where given the option, that balance could still tip against federal control. 28. More or less, for three reasons: First, the INS is of course a politically-sensitive entity, and to the extent it has the discretion to allocate enforcement resources on a regional basis, It will shift them to those areas in which the demand for enforcement is greatest. See, e.g., Patrick J. McDonnell, Deportation of Criminals, INS Fugitives at New High, LA. TIMES, June 23, 1997, at Al (reporting intensive INS enforcement efforts in Southern California). Second, state and local jurisdictions may be able to undermine enforcement, either by turning a blind eye to immigration law violations, see, e.g., Mary A. Mitchell, City, State Thumb Nose at Immigration Laws, Ciu. SUN-TMES, Jan. 19, 1997, at 12, or by adjusting criminal sentences to preclude deportation in individual cases. (Deportation for criminal activity often depends on the crime charged and penalty imposed. See, e.g., INA § 237(a)(2).) Finally, the new Immigration law act itself provides for formal arrangements under which particular state and local authorities would be able to enforce federal immigration laws under Justice Department supervision. See infra text accompanying note 38. 29. This occurs by virtue of political logrolling; representatives with the intense preference

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that Americans on a national basis do prefer tougher and better enforced immigration laws, it is unlikely that those popular views would have led to legislative results in the absence of California's relentless drive for federal action. ° It is from this experience that one might exploit a federalist dynamic to limit anti-immigration preferences to their least restrictive effect. The premise: a state disempowered from acting in its own jurisdiction will get its way at the national level in the absence of strong countervailing interests on the part of other states, as the Chinese exclusion and more recent experience appear to demonstrate. To the extent this premise holds true, the exercise of state-level discretion would lead to greater regulatory efficiency. Those states desiring stricter enforcement of immigration laws could pursue that objective without imposing their preference on states in which immigration might be considered a neutral or positive factor. This efficiency would also pose a net benefit for aliens as a group, 3 insofar as they would remain tolerated or even welcome in at least some states even if not in others. Better, from the on one issue will secure the support of other less-interested representatives with vote-trading deals, so that the intense preferences of others are also satisfied. 30. That is (the logrolling phenomenon aside), California's intense preferences put the issue on the legislative agenda in a way that would have been otherwise improbable. Even assuming genuine majority support for any particular legislative act, the argument runs, it takes a special interest to attract the sort of legislative attention needed to overcome crowded calendars and institutional inertia. 31. Of course, the population of aliens in this country is highly diverse. It is clear that some aliens have very little in common with others, the shared status notwithstanding; the European who comes here as a multinational executive and the undocumented Mexican unskilled laborer, for instance, share few political interests as aliens. Insofar as some aliens are less likely to draw hostility than others, the focus of this analysis is on those aliens who are undocumented and/or on public assistance, in other words, those aliens most vulnerable to the pendulum of public opinion. To some extent, however, all aliens are coming to feel at least some vulnerability by the fact of alienage alone. See, e.g., Nancy Cleeland, The Long Road to Citizenship, LA. TiEs, Feb. 16, 1997, at Al (noting that many not on public assistance have been driven to naturalize "by something more subtle, more profound-a shift in perception that has spotlighted a 'noncitizen' class, often in negative terms"). I would also include as within the group of aliens that would benefit from steam-valve federalism those who seek to enter the United States but are not yet here. California's preference for and success in securing enhanced national enforcement has obvious implications for those who would seek to enter or remain in the country illegally. And while not reducing annual ceilings for legal immigration, the immigration reform act significantly raised the hurdles for demonstrating that an immigrant will not become a public charge after entry, see IIRAIRA §§ 531, 551 (amending INA §§ 212, 213A), requirements that will render many otherwise qualified immigrants ineligible for permanent residence status. See Celia W. Dugger, Immigrant Study Finds Many Below New Income Limit, N.Y. TIMES, Mar. 16, 1997, § 1,at I (reporting that as many as 30% of would-be family-sponsored immigrants will be ineligible by virtue of new public charge provisions).

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alien's perspective, to be driven from a hostile California to a receptive New York than to be shut out of the United States altogether.32 Hence the steam-valve virtues of federalism in this context. Affording the states discretion to act on their preferences diminishes the pressure on the structure as a whole; otherwise, because you don't let off the steam, sooner or later the roof comes off. This is peculiar to the immigration context, in which there is such a complete disparity between state and federal power, and in which the federal bench is no protector of rights. It loses its relevance where state and federal powers are equivalent, as would be true in most equal protection contexts, for the preference frustrated at the state level could find no vindication in Washington (except through the indirect channel of judicial appointments).33 But the model could justify state discretion on other aspects of immigration law, where federal power knows few bounds. Public benefits present a paradigm case, especially insofar as they involve only state funds. Enforcement is another, whereby state authorities in states threatened by illegal immigration could be empowered to facilitate enforcement of federal immigration law. One state's desire to discourage an alien presence should not disable another from rolling out its welcome mat. One might imagine a scheme in which the states could participate even in decisions relating to relief from deportation, leaving only core decisions of admission and exclusion to the federal government.34

32. Cf Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L.

REV. 54, 75 (1997) (noting that generous policies regarding naturalization "may actually disserve the interests of potential immigrants" by creating incentives for more restrictive immigration policies). 33. This highlights one of the many oddities of immigration law, that is, that equal protection has assumed different meanings as against state and federal action affecting immigrant rights. See, e.g., Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 COLuM. L. REv. 1023, 1062 (1979). 34. Such an arrangement would not be without international precedent. In Germany, immigration enforcement is left to the federal Lander. See, e.g., Alan Cowell, Bavaria, Acting Alone, Begins to Expel Bosnian War Refugees, N.Y. TIMES, Oct. 10, 1996, at A14. The Ca-

nadian provinces also enjoy mechanisms by which to have their needs met on a discrete basis. See Immigration Act of 1976, RIS.C., ch.I-2, § 108 (Can.) (allowing federal Canadian government to enter into agreements with provinces regarding immigration); Asher I. Frankel, The Canadian Alternative: A Review of Canada's Rules Governing Permanent Residence, 74 INTERPRETER RELEASES 885, 886 (1997).

A more conventional argument for immigration federalism could be grounded in the standard conception of the states as laboratories towards best practices.

As evidence of such a

possibility, the Urban Institute recently published a lengthy study of one state's success in handling large-scale immigration. See THOMAS J. ESPENSHADE, KEYS TO SUCCESSFUL IMMIGRATION: IMPLICATIONS OF THE NEW JERSEY EXPERIENCE (1997).

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The recent welfare and immigration measures take significant steps in this direction. The Personal Responsibility Act allows the states to extend certain benefits to aliens at their option. With respect to federally funded Medicare and what is colloquially known as "welfare" (now

called "temporary assistance to needy families"), states may make independent determinations on the eligibility of legal resident aliens.3" With

respect to wholly state or locally funded public benefits, the states may -in a little-noticed provision-extend eligibility to illegal aliens, so

long as it is done pursuant to affirmative state law enacted after the date of the federal welfare reform."

The IIRAIRA allows states to

conduct (but does not mandate) pilot programs under which undocumented aliens are denied driver's licenses." On the enforcement side, the recent immigration measure permits the Attorney General to depu-

tize state and local authorities to enforce federal immigration law,"8 thus in effect providing for the possibility of tighter enforcement where a particular jurisdiction desires it.39 Such devolution should be applauded as a lesser evil. For surely if

Congress were barred from delegating eligibility criteria to the states with respect to certain benefits, it would simply legislate blanket ineligibility, a move that would almost certainly be found constitutional

under current doctrine.4" In other words, if required to mandate bene-

35. See Personal Responsibility Act § 402(b) (codified as amended at 8 U.S.C. § 1612(b)). 36. See id § 411(d) (codified as amended at 8 U.S.C. § 1621(d)). 37. IIRAIRA § 502. Some states had previously enacted laws making undocumented aliens ineligible for driver's licenses. See, e.g., CAL. VEIL CODE § 2801.5 (West 1994); NJ. STAT. ANN. § 39:3-29.3 (West 1993). 38. See HRAIRA §§ 133 (amending INA § 287) (authorizing agreements with states to allow state officers to investigate, apprehend, or detain aliens); see also id § 372 (amending INA § 103(a)) (providing for delegation of enforcement of immigration law to states involving situations of mass influx of aliens). 39. One would expect such cooperative efforts to be undertaken only by anti-alien jurisdictions, see, e.g., Lesley Wright, Police Urged to Explore Immigration Duties, LA. TMES, Mar. 5, 1997, at B3 (reporting Orange County, California, consideration of local enforcement possibilities), within which enforcement of the new law would presumably be more strict relative to those jurisdictions not participating in enforcement activities. 40. See Mathews v. Diaz, 426 U.S. 67 (1976) (upholding residency requirement for federal benefits imposed only on aliens). Arguments that the federal government should be constitutionally barred from such discrimination hinge on the characterization of such laws as not principally relating to immigration law, and thus not warranting the extreme deference afforded the political branches in the area. See Recent Legislation, Welfare Reform-Treatment of Legal Immigrants-Congress Authorizes States to Deny Public Benefits to Noncilzens and Excludes Legal Immigrantsfrom Federal Aid Programs, 110 HARV. L REV. 1191, 1195 (1997); see also Linda S. Bosniak, Immigrants, Preemption, and Equality, 35 VA. J. IN'L L 179, 183-90 (1994) (distinguishing immigration law from alienage law); Hiroshi Motomura, Immigration and

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fits eligibility one way or the other at the national level, Congress

would predictably opt for blanket ineligibility (at least in times of significant anti-alien sentiment).

Delegating the decision to the states

presents a middle option under which many, and perhaps most, aliens will enjoy public benefits. Such delegation would almost certainly be consistent with the case law. Courts have struck down state action on

the grounds that it might interfere with a federally formulated immigration policy, but that can hardly be the case where the federal govern-

ment itself expressly approves of it.4 A better option would be for the courts to adopt a steam-valve

perspective and abandon their heavy presumption against state-level action.42 If the courts require affirmative congressional authorization of independent state action, the pressure cooker created (even if only tem-

Alienage, Federalism and Proposition 187, 35 VA. J. INT'L L. 201 (1994) (same). That proposition is surely debatable, as is apparent in the welfare law itself. See Personal Responsibility Act § 400 (stating that among the purposes of the bill is to ensure that "the availability of public benefits not constitute an incentive for immigration to the United States"). And even such an apparent victory as the outright reversal of Mathews might itself, as with the suppression of state-level action, turn pyhrric; for if Congress could not deny public benefits to aliens, it could simply mandate the deportation of those aliens requiring public assistance, as is provided (though not rigorously enforced) under existing law. See INA § 237(a)(5) ('Any alien who, within five years after date of admission, has become a public charge from causes not affirmatively shown to have arisen since admission is deportable"). 41. Cf De Canas v. Bica, 424 U.S. 351 (1976) (upholding state law penalizing the employment of illegal aliens found not to "impose[] additional burdens [on immigration] not contemplated by Congress"). The welfare act's delegation of immigrant-related decisionmaking would find strong doctrinal support in the judicially confirmed congressional power to approve state action that would otherwise violate the commerce clause. See, e.g., Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946); William Cohen, Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to an Old Enigma, 35 STAN. L. REV. 387 (1983). Gilbert Paul Carrasco has argued that extending such power to the states violates both the non-delegation doctrine as well as the Naturalization Clause, under which Congress has the power to make uniform rules respecting naturalization. See Gilbert Paul Carrasco, CongressionalArrogation of Power: Alien Constellation in the Galaxy of Equal Protection, 74 B.U. L. REV. 591, 626-38 (1994). The merits of these novel arguments aside, one might only note again that were Congress barred from delegation, it would in most cases opt for uniformity by canceling, not extending, benefits across the board. 42. By way of a doctrinal justification of such a reversal, I have elsewhere argued that (1) the principle of federal exclusivity was necessitated only on the ground that state-level action in the area could interfere with sensitive foreign relations, to the detriment of the nation as a whole, but that (2) such sensitivities no longer prevail in a world in which an offended foreign state will likely undertake targeted retaliation against the acting state alone and not against the country as a whole. In other words, where in earlier times California's Prop 187 (if implemented) might have resulted in Mexican action against products from, say, Michigan, or in a changed vote in the United Nations, today Mexico would undertake retaliation against Californian interests alone. See Spiro, supra note 2, at 161-74.

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porarily) by frustrated state preferences will inevitably spill over into federal legislation affording no possibility of state-level discretion. As noted above, the JIRAIRA included a number of provisions regarding enforcement and deportability that will be national in coverage.43 In a provision directed at earlier state-level attempts to play in the immigration game--the so-called sanctuary movement of the 1970s and 1980s-the act also preempts state laws which would prohibit or restrict

any government entity from reporting undocumented aliens to the INS . Query whether these mandatory provisions would have found their

way into the U.S. Code without the urgency to satisfy a California unable to help itself. If Proposition 187 had been allowed to stand, would we have had new immigration legislation of any description? Perhaps, but I doubt that it would have been of the same order of wa-

tershed significance, or that it would have marked so clear a retrenchment in national immigration policy. II.

CoMPETITIVE FEDERALISM AND IMMIGRATION

Embracing a steam-valve justification for federalism in immigration lawmaking does suffer the drawback of allowing constituent units of

the federation to adopt measures detrimental to aliens. Indeed, it might be supposed that all or most states would exercise the full extent of

their new discretion against aligns, in the sort of "race to the bottom" that has been predicted (if not proved) in the environmental and corporate law contexts.

A race to the bottom in the states' new realm of

immigration policymaking would militate strongly against devolving such authorities in the first place, with the putative gains of the steamvalve mechanism lost to other possible drawbacks of state-level control.

45

43. See supra text accompanying notes 22-27. A state has minimal influence on removal proceedings, which are of course conducted as federal proceedings on the basis of national uniformity. In contrast to the devolutionary elements of the welfare ac, the IIRAIRA also imposes some further express constraints on state-level activity. The measure prohibits the states from affording in-state tuition rates for higher cducation to such aliens, see IIRAIRA § 505, and requires them to charge foreign students who attend public elementary and secondary schools the unsubsidized per capita cost for such education. See I1 § 625 (amending INA § 214). 44. See IIRAIRA § 642. 45. One might expect such drawbacks to include administrative inefficiencies, although the INS is not ordinarily held out as a paragon of administrative virtue. To the extent that devolution resulted in significant state-level discretion in the interpretation and enforcement of immi-

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But the prospect of a race to the bottom is slight. Although some states may adopt policies unfavorable to aliens, there will be interests on the other side of the balance sufficient in most cases to overcome the perceived political and economic gains of denying public benefits to aliens and otherwise discouraging them from taking up residence. If anything, this balance would appear to point to consistent exercise of state-level regulatory discretion in the alien's favor, so that aliens would fare better before state legislators than before their federal counterparts. It operates through the discipline of the global marketplace, which would penalize those jurisdictions perceived as unfriendly to aliens. California is seen to mistreat Mexicans; Mexicans move their business to Texas; California stops mistreating Mexicans. Hence the development of interstate competition hinging on the status of aliens under state law. The race-to-the-bottom paradigm was born of the debate over the efficiency of state-level authority in the area of corporate law, and has been more recently applied to justify federal regulation of the environment. 6 Such regulation, the argument runs, would inevitably fail to reflect preferences for environmental protection as states are forced to compete for corporate resources with ever-diminished environmental controls. Where, say, the residents of State A might prefer regulation that would cost a corporation $10 per unit, it could not impose such a scheme so long as the law of State B required only $8 per unit in environmental controls; all corporate activity would relocate to State B. State A responds by diluting its own regulations to the point where it imposes costs at $8--or less-and the race is on, so that residents in neither state would find their preferences reflected in law. Federal regulation emerges as the antidote, imposing such preferences at a level from which corporations cannot escape. Even assuming its applicability in the environmental context-which some now dispute 47 -the race-to-the-bottom model would seem a particularly poor predictor of how the states might regulate immigration. Most important are the concrete economic interests which would miligration law, it would clearly impose transaction costs on international commerce. It is to eliminate such costs that the European Union has moved to centralize immigration decision making, though hardly with complete success. See, e.g., David O'Keeffe, The Emergence of a European Immigration Policy, 20 EUR. L. REv. 20 (1995). 46. See, e.g., Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism In Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196 (1977). 47. See Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-ToThe-Bottom" Rationale For Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992).

1997]

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tate against adopting anti-alien measures. Leaving aside presumed across-the-board corporate preferences for a greater supply of labor (rendered cheaper thereby), foreign corporations might have an aversion to locating in states that appear unreceptive to aliens in general, or to their nationals in particular. At the same time, foreign consumers might be less willing to purchase goods from such jurisdictions. Such difficulties might also arise with respect to corporations and consumers from other states of the Union, as distaste for states perceived to mistreat aliens could be translated into economic action. In the face of the counterbalance of these economic interests, the savings posed by scratching aliens from public benefit rolls no longer come without costs. Adopting an aggressively anti-alien position could result in lost investment and lost exports. Indeed, assuming the primacy of state interests in maximizing commercial activity (as does race-tothe-bottom theory),48 one might predict a rise, if not a race, to the top. In competition for foreign investment and trade, states would each move to promise aliens a little better treatment than in others, even beyond the increased economic activity flowing from that improved status. This is in fact what has appeared to happen in the state-level competition to attract foreign investment with tax breaks and the like; the competition has pushed states to offer more in the way of incentives than is justified by the deals sealed with them.49 Nor, in the context of alien-related state regulation, is this equation merely hypothetical. The lead-up to and aftermath of Proposition 187 serves here as the first and best exhibit. As the Proposition 187 campaign intensified, the government of Mexico weighed in against the 48. Assuming also that organized labor either does not enjoy a political stranglehold on state government or would not use such a stranglehold against possible competition from nev alien workers and towards more restrictionist ends. Leaving aside the issue of political strength, as unions have become increasingly internationalized they have retreated from their traditional stance against immigration. See, e.g., Statement by the AFL-CIO Executive Council on Immigration and the American

Dream (Feb. 23,

1995) available at (decrying "politicians and hate-mongers who are determined to make immigrants the scapegoats for a wide variety of economic and social problems"). 49. See, e.g., Peter D. Enrich, Saving the States From Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 HARV. L REV. 377, 397-405 (1996); Robert Tomsho, Growing Pains: Rio Rancho Wooed Industry and Got It, Plus Financial Woes, WALL ST. J., Apr. 11, 1995, at Al (recounting how town's granting of tax abatements and other in-

centives undermined funding of school system).

Prominent among examples of such inflated

incentives is the $300 million package extended Mercedes Benz by Alabama to locate a major factory in state. The high tab was necessary in part to overcome the German corporation's

worries about the state's racial history. See E.S. Broning & Helen Cooper, Ante Up: States' Bidding War Over Mercedes Plant Made For Costly Chase, WALL ST. J., Nov. 24, 1993, at Al.

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measure with public statements, but also with not-so-veiled threats to go slow on California-Mexican economic relations if the proposition were to pass." These threats were echoed by provincial authorities and in the Mexican private sector." Domestic public interest coalitions also called for domestic boycotts of California products and tourism, along the lines of successful boycott efforts to force Arizona to reverse its decision to abandon Martin Luther King's birthday as a state holiday. 2 Although there was no dramatic rupture-perhaps in part because Proposition 187 has been enjoined by the courts-California does appear to have lost business to other states as a result of the ballot measure's passage,5 3 and its relationship with Mexico remains strained. 4 But the fallout in other states shouldering large illegal immigrant populations has been telling. Although many predicted similar anti-alien measures would be adopted in these jurisdictions, none has followed suit. Texas presents the starkest contrast. At the same time as Texas has suffered the same magnitude of costs as has California from illegal immigration, its governor (as in California, a Republican) has gone out of his way not only to discourage a Proposition 187-type campaign in his state but actually to embrace his counterparts on the other side of the border." Texas' refusal to jump on the anti-alien bandwagon has 50. See, e.g., Diane Lindquist, Angered Mexican Officials Snubbing 'California Week', SAN DIEGO UmNoN-TRIB., Oct. 6, 1994, at A14 (reporting boycott of California trade promotion event in Mexico City because of Prop 187 campaign). 51. See, e.g., Sandra Dibble, Wilson Wears Out Welcome in Tijuana, SAN DIEGO UNION-TRiJ., Oct. 6, 1994, at BI (reporting Tijuana City Council resolution declaring California governor persona non grata, as well as boycott calls by local business community). 52. In addition to lost tourism and convention dollars estimated at $190 million, the National Football League decided against having the Super Bowl played in Arizona, before Arizona relented to the economic pressure. See Jane Gross, Arizona Hopes Holiday for King Will Mend Its Image, N.Y. TIMES, Jan. 17, 1993, § 1, at 16. For other such examples of successful boycotts, see William Claiborne, Boycotts' Successes Have Nervous Officials Looking for an Antidote, WASH. POST, Jan. 8, 1993, at A8. 53. See, e.g., Arthur Golden, Envoy Says Other States Welcome Ties to Mexico, SAN DIEGO UNIoN-TRIB., July 12, 1995, at A3 (reporting Mexican ambassador's message to California governor "that other states are cashing in on the perception of California as unfriendly to Mexico"). 54. See, e.g., Diane Lindquist, Calfornia-Mexico Rift Bridged But Not Mended, SAN DIEGO UNION-TRIB., Oct. 21, 1995, at Al (reporting potential consequences of lingering resentment of Mexicans towards California governor as a result of his restrictionist position on immigration); Ken Chavez, Wilson Trade Team Targets Mexico, SACRAMENTO BEE, Sept. 27, 1996, at El

(same). 55. See George W. Bush, No Cheap Shots At Mexico, Please, N.Y. TIMES, Aug. 20, 1995, § 4, at 13 (Op. Ed.) (Texas governor highlighting importance of Mexico as trading partner). The possibility that Texas's position here results from history, not economics, see, e.g., Robert Suro, Same Issue, 2 Political Realities, WASH. POST, Oct. 27, 1994, at A25, is belied the facts

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been motivated, at least in part, by a recognition of Mexico's growing economic importance to the state and the possibility that a Texas 187 could poison the relationship. It might also have had cause for concern in the realm of domestic trade and tourism dollars. The Mexican example might be questioned as involving an extreme set of vectors, so as not to usefully ground any broader implications. It is no doubt true that the Mexican government has demonstrated a strong interest in its nationals who have migrated, legally or illegally, to the United States, stronger than that of other states; and that Mexican trade is significant to the economies of American states, particularly along the border. But other nations did in fact take notice of Proposition 187." And it might well be the case that foreign governments and corporations could respond to the perceived mistreatment of aliens even where they are of different nationality, as of course is true in the realm of international human rights; indeed, immigrant rights are in fact increasingly framed, at the international level, as such.5' Thus, state-level discrimination could provoke economic response even where the aliens disadvantaged are not so lucky as to have activist home countries." To these economic interests drawing the states towards non-discrimination, one must also add the political incentives that elected state officials may find in pro-alien policies. Aliens of a particular ethnicity are likely to have strong ties to citizens of the same heritage, and the latter have proved strong advocates, in most cases, for the better treatment of their non-citizen counterparts. As aliens naturalize in record numbers, moreover, they are likely to remember who treated them

in Plyler v. Doe, in which the Supreme Court struck down the state's ban on public education

for undocumented alien children. See Plyler v. Doe, 457 US. 202 (1982) (striking down Texas law excluding undocumented alien children from primary and secondary public education). 56. See, e.g., Debra Beachy, Argentine President Touts 77es That Bind Houston. His Nation, HOUSTON CHRON., Oct. 26, 1995, (Business), at 2 (reporting Argentine president's approval of Texas Governor George Bush's opposition to Prop 187); Prop 187: An Outcry Abroad, MItAtI HERALD, Nov. 12, 1994, at A30 (editorial); cf. Carey Goldberg, Immigration Rules Enrage Russian Envoy in Seattle, N.Y. TIMEs, Feb. 23, 1997, § 1, at 18 (reporting unhappiness of Russian Federation and Washington state officials with the new immigration law as obstacle to facilitating trade between the two). 57. See, e.g., Linda S. Bosniak, Human Rights, State Sovereignty and the Protection of Undocumented Migrants Under the InternationalMigrant Workers Comentlon, 25 INT'L MIORATIOX REv. 737 (1991). For an argument that state governments should be held directly accountable for human rights violations under international law, see Peter J. Spiro, The States and International Humah Rights, FO.DHAM L. REV. (forthcoming 1998). 58. The example described above, involving Mereedes-Benz' transhistorical sensitivity to Alabama's racist past, suggests the plausibility of such responses. See Browning & Cooper, supra note 49.

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well-or poorly--during their probationary residence. These political factors go a long way towards explaining the vocal position in favor of alien interests adopted in recent months by New York City mayor Rudolph Giuliani." Although not strictly a matter of inter-state competition-this political element will mostly hinge on the existence of established communities within particular states, not among them-it will reinforce competitive economic incentives to adopt nondiscriminatory policies towards aliens. It is true, on the other hand, that states may well fear an influx of aliens seeking public benefits where they are more generous than other states. No doubt with this thrust would a race-to-the bottom model be asserted in this context: states would attempt consistently to position themselves as less generous than other states, so as to deter welfareseekers from residence, with the end result that no state would offer aliens any benefits.60 That effect could be diminished by allowing the imposition of reasonable state residency requirements for benefits eligibility, which, even if problematic as applied to United States citizens, would appear constitutional as applied to aliens.6' Leaving aside that innovation, an alien's choice of residence is not a frictionless one (other factors, such as family ties, might typically loom more prominent than benefits eligibility), so that greater generosity would not necessarily lead to significant internal relocation. Moreover, in the face of economic interests on the other side of the balance, states could well find it in their rational interest to welcome aliens even where it resulted in higher public benefit levels. Of course, some might find otherwise. California might well persist with the Proposition 187 approach to alien and immigration issues, notwithstanding possible trade and investment losses, by way of a straightforward cost/benefit accounting; the rise to the top may be as frail a model as the race to the bottom. This persistence might work 59. See David Firestone, Giuliani is Becoming 'National Spokesman' on Immigration, N.Y. TIMES, Sept. 26, 1996, at BI; Joyce Pumick, Immigrants Fighting Back, As Citizens, N.Y.

TIMES, Oct. 21, 1996, at BI. 60. This difficulty applies generally to the devolution of welfare decisionmaking to the

states, not just that relating to aliens. See Note, Devolving Welfare Programs to the States: A Public Choice Perspective, 109 HARV. L. REv. 1984, 1988-89 (1996).

61. State residency requirements have been invalidated as inconsistent with a constitutional right to travel, see Shapiro v. Thompson, 394 U.S. 618 (1969), a right that would seem inconsistent with the essence of alien status and the almost unlimited power of the federal government to limit the alien's "travel" by way of deportation. Moreover, the welfare law's delegation to the states of the power to deny all aliens certain forms of benefits would appear by

implication to allow for the imposition of residency requirements on them.

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to readjust the burden of immigration among the states more equitably,

as aliens leave California for more hospitable jurisdictions."

At the

same time, however, it is clear that the balance will in other cases

point to non-discriminatory policies, as has been the case in Texas. Early indications of how the states will exercise delegated discretion

under the Personal Responsibility Act also evidences the probability of varied state approaches to alienage and immigration questions as such

powers are delegated by the federal government. 3 The evidence here is, I concede, largely anecdotal. But as with the steam-valve model, the competitive approach to immigration policies may work to the net benefit of aliens. Competitive models depend on the availability of substitutes.

One might fairly assume that for many

forms of economic activity Texas and California are more or less interchangeable, as both a location for productive undertakings and as a

source for consumer goods. But the same will be less easily established at the level of nations.

From the foreign corporation's or

consumer's perspective, there may very well be no substitute for the United States as a whole, in which case no competitive discipline can be brought to bear. A Canadian consumer might easily choose between similarly priced Californian and Oregonian wines, but would have much more trouble jumping to a more dear French product. In this construct,

federal lawmakers will see little cost in adopting policies unfavorable to aliens where their state counterparts may. In any case, keeping the decisioti in Washington will, under the steam-valve theory, give us

62. See Spiro, supra note 2, at 173-74. There is, in fact, recent evidence that aliens (legal and illegal) have been leaving California for other parts of the country, which may be due to economic causes, but could also be explained in part by hostility towards aliens in that state. See, e.g., Sam Dillon, Job Search Lures Mexicans to Far Corners of U.S., N.Y. Tiis, Feb. 4,

1997, at A3 (reporting interstate migration of recent immigrants in part because of Prop 187); Hmong on the Move Again, Ci. TIUB., Nov. 29, 1996, at I (same). 63. See Robert Pear, Rewards and Penalties Vary In States' Welfare Programs, N.Y. TIES, Feb. 23, 1997, § 1, at 26 (reporting that 36 of 40 states filing plans under nev welfare law had opted to extend eligibility of legal aliens for welfare benefits). In at least one case, the economic ripple effect of precluding alien eligibility figured in a decision to afford them benefits. See Ellen Nakashima, Virginia Spares Legal Immigrants From Benefits Cuts, WASH. POST, Feb. 19, 1997, at B5 (reporting state senator's decision to support eligibility on grounds that "[w]e depend tremendously on immigrant services for a lot of our business . . .. If we created a disincentive for these people to be here, I can see a real exodus of these people"). By way of further evidence of a benign approach to immigrants, some local governments have also been moving to facilitate the naturalization of resident aliens in their jurisdictions. See. e.g., Adam Nagourney, Giuliani Proposes That New York Help Immigrants Become Citfrens, N.Y. TIMES, May 6, 1997, at Al; Santa Clara Making It Easier to Become Cliten, S.F. EXAM., Sept. 11, 1996, at A4.

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rules determined by the lowest common denominator. Federal lawmaking starts to resemble not merely a race, but rather a plunge to the anti-alien bottom. III.

CONCLUSION

Amidst general national skepticism as to the desirability of maintaining high levels of immigration, it may not prove particularly useful, at least not in the short term, to press the fight in Washington regarding the status of aliens already admitted. That fight is not likely to be a winning one, so long as so electorally powerful a state as California continues strenuously to oppose generous treatment. The battle is better fought at the level of the states, where the concrete economic advantages will often outweigh the costs presented by alien populations. Some of these battles will no doubt be lost, but many will not; aliens will be discriminated against in some states but not in all. That surely is a better result than a future of near-total losses that aliens and their advocates will face if immigration remains a matter of exclusive federal concern.