On November 4, 2024, incoming President Donald Trump vowed to “launch the largest deportation program of criminals in American history.”1 Within six months of taking office, it became clear that this was no empty threat. A defining characteristic of the Trump II Administration’s aggressive immigration enforcement agenda is the substantial authorization of, and reliance upon, subfederal action. Albeit unconventional, the Trump II Administration’s mobilization of subfederal immigration regulatory channels is far from unprecedented.

In recent years, states and localities have emerged as the leading architects of immigration laws and policies, outpacing the federal government in terms of both influence and scope. Although it is well-established that the federal government maintains exclusive authority over pure immigration determinations and that subfederal entities retain the residual authority to adopt non-conflictual alienage provisions, the intricacies of this power-sharing relationship remain underexamined.

While the subfederal propagation of restrictionist policies threatens to violate individual constitutional rights, entrench stigmatizing anti-immigrant narratives, and erode noncitizens’ quality of life, this Note proffers several prescriptive recommendations designed to mitigate these harms. In addition to clarifying how preemption challenges involving subfederal immigration laws should be resolved, courts should meaningfully consider the equal protection concerns arising out of the same legislative nuclei. Furthermore, the federal government should appoint a liaison to manage vertical integration discourse with subfederal governments and should, in response to articulated grievances, regularize the dispersal of federal funds to offset the subfederal costs associated with immigration-related activity because subfederal governments are more likely to engage with integrationist ideas when they are not exclusively responsible for bearing the burden of the associated costs.

Continue reading Do Too Many Subfederal Cooks in the Kitchen Spoil the Regulatory Broth?