The Constitutional Battle Over Who Has Control of Immigration Policy

AMELIA ANDERSON—Stories concerning immigrants continuously grip local and national media—most recently, with Florida governor Ron DeSantis’s taxpayer-funded flights of asylum-seekers from San Antonio to Martha’s Vineyard. Whatever one’s stance on the matter, it is clear to all that controversy between the right and left over which immigration policy should be followed is not ending anytime soon. Less obvious, however, is the quiet battle between the states and the federal government over who controls immigration policy creation and administration. Interestingly, depending on the political leanings of the state involved, the federal government is sometimes arguing alongside and sometimes arguing against various immigrants’ rights organizations. Two recent cases illustrate the impact that debates on the issue of federalism will ultimately have on immigration policy enactment. 

The first case of issue is Geo Group, Inc. v. Newsom (2022). In 2019, California passed Assembly Bill (AB) 32, which would phase out the use of all private, for-profit prisons and immigrant detention centers in the state. On a practical level, this law would have limited or prevented the use of Immigration and Customs Enforcement (ICE) facilities within the state of California. The United States and the Geo Group, a privately-owned and for-profit prison company that owns and runs two California immigration detention centers, each sued the State of California in response. A somewhat complicated series of court decisions followed, but have ended (for the moment) with a September 26, 2022 ruling by the Ninth Circuit Court of Appeals. 

The Court held that AB 32 was unconstitutional because it violated the Supremacy Clause, giving California too much power over the federal government’s immigrant detention procedures. Generally, the Supremacy Clause stands for the idea that states cannot interfere with the federal government’s exercise of its lawful powers. Thus, in the instance of Geo Group v. Newsom, a blue state had attempted to enact a more liberal policy that would have made it harder for the federal government to detain immigrants in California—a policy which the Ninth Circuit fully rejected. Additional appeals, however, are possible. The second case discussed illustrates that these issues are controversial enough that the U.S. Supreme Court is willing to chime in to finish the debate. 

On July 21, 2022, the Supreme Court granted certiorari for United States v. Texas. This Supreme Court case, which will be argued in December 2022, is the result of a split circuit between the Fifth and the Sixth Circuit Courts of Appeals. The two cases dealt with the same issue: the Department of Homeland Security’s (“DHS”) 2021 guidance on prioritization of certain immigrant groups for detention and deportation. Of the five states involved in the final case—Texas, Louisiana, Arizona, Montana, and Ohio—all except Arizona voted for Trump and against Biden in the 2020 election. Here, then, in contrast with Geo Group, more moderate to red states are arguing against federal immigration policy. 

In their cases, the states argued that the new guidance violates the Administrative Procedure Act, which limits the power that federal agencies such as the DHS have in issuing regulations. The states also contended that the guidance fails to comply with immigration law as already set out by Congress, and ultimately “[leads] to fewer detainers and removals, prompting the release of more individuals from state custody into their communities and imposing more costs and burdens on them….” The U.S. District Court for the Southern District of Ohio initially issued an injunction, halting the use of the DHS guidance, but the Sixth Circuit overturned this decision. In its opinion, the Sixth Circuit upheld several arguments against the states, including that there was not sufficient evidence of actual harm towards the states. The Fifth Circuit, in its conflicting decision, disagreed on this point. Ultimately, the issue is one that has haunted the immigration debate for years—how to resolve the problem that immigration is a federal issue that impacts certain states and local communities. 

Unfortunately (or, perhaps, fortunately, depending on the ultimate decisions and your opinion on the matter), final Supreme Court decisions on both the issues of whether states can prohibit the use of for-profit detention centers and whether DHS can issue guidance that impacts which noncitizens are being searched for, detained, and deported, will not resolve the basic pull between the states and the federal government on matters related to immigration. That will have to wait for another day.