Citizenship Federalism

Emily R. Chertoff

Immigration federalism has attracted overwhelming attention from scholars and advocates in recent years. Despite this, the scholarship has not fully explored the outer limits of states’ power to regulate noncitizens. This Article attempts to provide one account of these outer limits. To do so, it uses as a case study an important group of noncitizens with a complex relationship to state (and national) community. It is the first systematic analysis of the effects of state law on former immigrants to the United States, a group that has grown into the millions with increased deportations and voluntary outmigration. It is also the first treatment in legal scholarship of two substantive state-law legal issues that are harming these millions of former immigrants. Building on these descriptive observations, this Article offers a theoretical framework to guide state immigration law and policymaking that emphasizes states’ powers to define community differently than the federal government. This framework, which the Article names “citizenship federalism” to highlight its linkages to and divergences from the antecedent concept of “immigration federalism,” focuses attention on states’ power to adopt different underlying values and criteria than the federal system does when deciding which noncitizens to place within the boundaries of community. This Article focuses on states’ power to challenge federal law’s reliance on territoriality, which federal law treats as the key boundary determining which noncitizens are within our national community. Citizenship federalism opens up significant possibilities for academics and practitioners alike, both for understanding the states’ role in constructing political and social membership and for moving towards a new generation of state-level immigration policy and advocacy.