This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
The costs and benefits of unauthorized migration are unevenly distributed. Border states, and especially the border communities within them, have a different perspective on migrant flows than East Coast urbanites, because border communities are simply hit much harder.
States that depend heavily on agriculture sit somewhere in the middle — skeptical of immigration as a policy matter, but heavily dependent on unauthorized migrants in fact. That, at least, was how things used to be. In the new world of nationalized politics, Iowa is the new Texas. Iowa has enacted a law which makes it a state crime to have violated federal immigration law.
Whether the new Iowa law will stand — and whether others like it, in Texas and Louisiana, will survive judicial review — is an open question. Our federal system allows both the national government and the state governments to operate parallel systems of criminal justice, but federal law preempts state law when Congress either explicitly says so or when the intent of Congress to preempt state law is clearly implied. Implied preemption is most common in certain domains — like, say, nuclear safety regulation — where the federal interest in uniformity clearly outweighs the particular interests of states and localities. (For a useful backgrounder on preemption doctrine, see here.)
From our perspective, there are two oddities about the new wave of state attempts to regulate immigration policy.
The first oddity is that we’ve been here before, and recently. In the 2010 case of Arizona v. United States, the Supreme Court considered the question of whether Arizona could make it a state-level misdemeanor to have violated federal immigration law, and ruled against Arizona, holding that federal law wholly preempted Arizona’s attempt to concurrently criminalize unauthorized migration. The new state laws are likely to slam directly into this precedent — indeed, Texas’s attempt has already been enjoined on those grounds.
The second oddity is geographical. Iowa is not a border state, and Iowa has a relatively low number of immigrants — 94% of the population is native-born. (Fun fact: Arlington’s native-born comprise about 78% of the population, which almost precisely mirrors the proportion for Switzerland.)
The nationalization of our politics explains both of these apparent oddities. Iowa’s governor, Kim Reynolds, knows quite well that the new law is likely to be enjoined, but she also knows that taking aggressive positions on immigration matters is popular with Republican primary voters all over the country. An expected injunction insulates the governor from any potential economic fallout, but she still reaps the political benefits.
As always, we welcome your comments and will do our best to respond.