William & Mary Law Review


Rick Su


Immigration is a national issue and a federal responsibility. So why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that courts are likely to enjoin or strike down? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state laws are being pursued less for their regulatory impact and more for their ability to shape federal immigration policy making. States have assumed this role because, as alternative policy venues, they offer political actors a way to reframe the public perception of an issue and shift debates to more favorable ground. Moreover, states are able to exert this kind of influence without having to legally implement or effectively enforce their laws. This theory offers an explanation for why states have so frequently been drawn into policy disputes over immigration in the past, such as those that led to the major immigration reforms of 1986 and 1996. It also casts new light on more recent state responses, such as Arizona’s controversial 2010 immigration enforcement law.