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Rick Su, Local Fragmentation as Immigration Regulation, 47 Hous. L. Rev. 367 (2010), available at SSRN.

The borders of immigration law are incredibly porous.  Although immigration law, strictly defined, encompasses the rules that govern the terms of admission into and exclusion or expulsion from the country, immigration law is in fact inextricably intertwined with a whole host of other legal regimes.  This includes obvious examples like naturalization and alienage laws, as well as labor law, criminal law and economic policy.  But it also includes a host of less obvious candidates.

In his recent article in the Houston Law Review, Rick Su examines an area of law that is not often thought about in conjunction with immigration law: local government law.  The connection between immigration law and local government law is not intuitive.  Since the late Nineteenth Century, courts have found that the national government has the exclusive power to regulate immigration law, and that Congress’ power to enact immigration legislation is plenary.  States and localities, therefore, must limit their own efforts to regulate immigration to areas of the law that are not preempted by Congress’ fairly comprehensive immigration regulation.  Although state and local governments recently have played a larger role in enforcing federal immigration law than has historically been the case, courts generally have rejected efforts on the part of states and localities to directly regulate immigration through their own laws.  This can be seen in the largely unsuccessful efforts of localities like Hazelton, Pennsylvania and states like Arizona to pass immigration-related ordinances that withstand constitutional scrutiny.

One might therefore assume that localities have not played any significant role in the nation’s immigration history.  But in his recent article Local Fragmentation As Immigration Regulation, Rick Su demonstrates that this is not the case.  Su’s argument is that laws governing municipal boundaries have served the function of immigration regulations at the local level.  Exploring the similarities between immigration and zoning regulations, Su argues that, “[a]side from the doctrinal connections, the two also share deep historical roots. Indeed, it can be argued that immigration and local spatial controls were envisioned as counterparts of a broader regulatory regime from the very start.”  Su at 383.

Su’s article traces the parallel development of zoning and immigration regulations from the early part of the twentieth century through the present.  The phenomenon of defining local membership and allocating benefits on the basis of such sub-national membership has deep historical roots. Su notes that local zoning regulations – which have resulted in “segregated neighborhoods and differentiated communities” have operated as a pervasive a form of “second-order immigration regulation.”  Su at 370.  While national immigration regulations operate as a “crude tool” for controlling national membership, local ordinances such as zoning ordinances serve as a more granular, sub-national form of regulatory control.

Su uses a variety of examples to make his point.  To take just one example, he explicates the indirect immigration implications of two important cases concerning school district lines – San Antonio Independent School District v. Rodriguez and Martinez v. Bynum. In Rodriguez, the Supreme Court rejected an equal protection challenge to policies that generated grossly unequal educational funding across school district lines.   Several years later, in Bynum, the court affirmed the state’s ability to make determinations concerning district residency and to limit access to education within districts on the basis of residency.  Functioning together, these two decisions allowed states and localities to draw local boundaries and parcel out educational benefits unequally between these boundaries

Significantly, as Su points out, these two decisions bookend the Supreme Court’s decision in Plyler v. Doe, in which the Supreme Court affirmed the right of undocumented immigrants to obtain free public education in grades K-12.  The Plyler decision concerned the same state regulations that were implicated in BynumBynum is understandably seen as much less constitutionally significant than Plyler when it comes to issues of educational funding for undocumented students.  Michael Olivas once wrote that by the time the Bynum case came to the Supreme Court, because of Plyler, “the more fundamental and important threshold issue had been settled; all else was detail.”  Su’s analysis is a reminder that sometimes, the devil may be in the details.  If a state is required to provide free education to undocumented K-12 students, but need not fund that education at levels comparable to the funding available in wealthier districts and if states and localities can use ordinances to zone much of the unauthorized immigrant population out of well-funded schools, it may be that the education is often worth less than meets the eye.  At a minimum, district lines become a second-order means of controlling the benefits flowing to undocumented immigrants.  Or, as Su puts it:

Seen alongside Rodriguez and Bynum, Plyler appears neither as promising as many of its advocates celebrated, nor as costly as its critics contended. Indeed, what these cases illustrate is that even while the Court was willing to undermine the symbolic sanctity of the national polity by extending its scope to include those who have been purposefully excluded, it was only willing to do so after preserving the divisions across local communities. (Su at 416).

By explicating how laws governing local membership and belonging have shaped the geography of immigration within the nation, Su demonstrates that the choice between national and local immigration regulation is a false one.  His article makes it clear that we have always had a system that has allowed for some forms of indirect immigration regulation at the local as well as the national level, and that restrictive local regimes have sometimes created or maintained the political space that allows for more liberal federal immigration and alienage policies.  Nevertheless, Su effectively demonstrates that the spacial fragmentation and inequality created by sub-federal regulations also have important and under-examined costs that bear on the immigration debate.  His article therefore serves as a cautionary reminder to immigration scholars that creating good immigration law and policy requires much greater attention to the multifaceted (and sometimes less-than-obvious) local responses to migration that are driven by and in turn help to shape federal immigration laws and policies.

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Cite as: Jennifer Chacón, Who Controls Immigration Policy?, JOTWELL (April 7, 2011) (reviewing Rick Su, Local Fragmentation as Immigration Regulation, 47 Hous. L. Rev. 367 (2010), available at SSRN),