Immigration Federalism in the Second Trump Administration

This Article explores the ongoing transformation of state and local engagement in immigration-related rulemaking in the United States during the Second Trump Administration. The Article examines the myriad ways in which federal executive actions and state responses to those actions, alongside independent state actions and the federal government’s responses to those actions, are upending long established immigration law doctrines and shifting the borders of American federalism. The Article discusses legal scholars’ previous understanding of immigration federalism, embodied in United States v. Arizona, and the prior distinctions between permissible “alienage” laws and impermissible “immigration” laws, which could not be introduced by state and local governments. It then turns to the resurgence of lawmaking in the immigration arena during the first few months of the Trump Administration, which could be categorized as “cooperative” and/or “uncooperative” federalism.

The Article analyzes the doctrinal, constitutional and practical implications of these recent developments, and proposes that increasingly punitive state legislation, coupled with the federal government’s aggressive enforcement operational mandate, poses a significant challenge to both individual immigrants’ fundamental rights and freedoms, and, of equal import, to the structural guarantees of our federal system and to our continued adherence to the rule of law.