State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation in Texas v. United States

"States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Depending upon the jurisdiction’s specific concerns, this interest can be expressed in various ways, from the adoption of “sanctuary” policies limiting the jurisdiction’s cooperation in federal enforcement efforts to the enactment of measures to deter unauthorized aliens from entering or remaining within the jurisdiction. In some cases, states or localities have also sued to compel federal officials to enforce the INA and other relevant laws.

In the mid-1990s, six states which were then home to over half the unauthorized aliens in the United States—Arizona, California, Florida, New Jersey, New York, and Texas—each filed suit alleging that federal officials’ failure to check unauthorized migration violated the Guarantee and Invasion Clauses of the Constitution, the Tenth Amendment, and provisions of the INA. Concerns regarding standing—or who is a proper party to seek relief from a federal court—were sometimes noted. However, even when standing was assumed, the constitutional claims were seen to involve nonjusticiable “political questions,” or failed on their merits. The states’ statutory claims were similarly seen to involve matters committed to agency discretion by law and, thus, not reviewable by the courts. In three cases, the courts also noted that federal officials’ alleged failure to control unauthorized migration did not constitute a reviewable “abdication” of their statutory duties..."
Immigration law