The Constitutional Right Not to Cooperate - Local Sovereignty and the Federal Immigration Power
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This article examines an important but up to now, still unexplored area in the federalism debate: May the federal government require local governments to cooperate with the enforcement of immigration law or other federal scheme? Or may local governments constitutionally refuse to provide that cooperation? I use immigration law enforcement as a case study to argue that the current legal framework, which allows the federal government to mandate local cooperation, ignores the significant federalism harms that federal cooperation laws impose. And these federalism harms are not simply limited to the immigration field. In other areas where federal and local governments disagree (e.g., medical marijuana, stem cell research, and physician-assisted suicide), there is similar potential for conflict and resulting federalism harms. Rather than apply the current bright line Printz/New York rule that ignores these federalism harms, I suggest using an intermediate balancing test, where both federal and local sovereign interests are considered. The cooperation debate in the immigration context has immediate, practical significance. Currently, some 49 cities and states have laws that limit the authority of their police and other employees to cooperate with federal immigration law enforcement. These local non-cooperation laws prohibit local government employees from reporting to the federal government undocumented persons they encounter in the course of providing police protection, health care, education, and other essential local government services. At the same time, the federal government has passed laws requiring the very same cooperation that local governments have prohibited: under federal law, local governments must allow their employees who want to cooperate with federal immigration enforcement on a voluntary basis to do so. This federal push to get local governments involved in immigration law enforcement has intensified after the attacks of 9/11. Under the current legal framework, the federal government wins. Its exercise of its preemption power faces no Tenth Amendment challenge because, unlike Printz and New York, federal cooperation laws do not commandeer local governments into passing legislation or enforcing federal schemes. Yet, the broad strokes of this preemption/commandeering analysis ignore the significant federalism harms that federal cooperation laws cause. In the case of immigration law enforcement, those federalism harms include (1) undermining democratic rule by interfering with local governments' ability to exercise their police powers in the ways they deem most effective to protect their communities, (2) upsetting the tyranny-prevention function of federalism by greatly augmenting federal power and disturbing the local-federal balance of power, and (3) thwarting local governments' right to experiment and find the appropriate law enforcement balance for their communities.
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