State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation

States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Some states and localities, concerned that federal enforcement disrupts families and communities, or infringes upon human rights, have adopted " sanctuary " policies limiting their cooperation in federal efforts. Other states and localities, in contrast, concerned about the costs of providing benefits or services to unauthorized aliens, or such aliens settling in their communities, have adopted measures to deter unauthorized aliens from entering or remaining within their jurisdiction. In some cases, such states or localities have also sued to compel federal officials to enforce the INA and other relevant laws. and Texas—which were then home to over half the unauthorized aliens in the United States. Although somewhat different claims were made in each suit, the states generally asserted that federal officials' alleged failure to check unauthorized migration violated the Guarantee and Invasion Clauses of the U.S. Constitution, the Tenth Amendment, and various provisions of the INA. Concerns regarding standing—or who is a proper party to seek judicial relief from a federal court—were noted in some cases. However, even when standing was assumed, states' constitutional claims were seen to involve nonjusticiable " political questions, " or to fail on their merits. The states' statutory claims were similarly seen to involve matters that were committed to agency discretion by law and, thus, not reviewable by the courts. In three cases, the courts also noted that federal officials' alleged failure to control unauthorized migration did not constitute a judicially reviewable " abdication " of their statutory responsibilities. Over a decade later, in 2011, Arizona asserted counterclaims challenging the federal government's alleged failure to stop unauthorized migration in the litigation over the S.B. 1070 measure enacted into law by Arizona. Although the court presumed that Arizona had standing, it rejected Arizona's claims regarding purported violations of the Invasion and Domestic Violence Clauses, the Tenth Amendment, and federal immigration laws. Some claims were seen to be precluded or otherwise settled by the litigation in the 1990s. Others were seen to involve nonjusticiable political questions, or to fail on their merits. The court also rejected the argument that the federal officials had abdicated their statutory responsibilities. Subsequently, in 2012, Mississippi, along with some U.S. Immigration and Customs Enforcement (ICE) agents, challenged the Obama …