States take care of business while federal immigration reform stalls

The heralded Senate immigration bill that was passed in June has hit a wall in the House of Representatives as the parties bicker over specifics and are sidetracked by Syria.  Meanwhile, last week, California's state legislature passed two bills that would expand the rights of undocumented persons by allowing them access to driver's licenses and limiting the cooperation of local law enforcement with federal authorities.  By ordering law enforcement to refrain from detaining persons solely because of their immigration status during stops for minor offenses, California is saving many undocumented immigrants from being turned over to the feds for deportation because their immigration status had been discovered by something like a minor traffic stop, not because they were committing a violent crime or drug crime.

The very same system of government in which the national government and states share power and the system that begat Arizona's draconian S.B. 1070 law, which had the expressed purpose of "attrition by enforcement", can also create pro-immigrant laws like those in California.  It is unfortunate that Arizona's S.B. 1070 and the high profile legal challenge it spawned has given a bad name to state immigration policy making.  As much as the federal government would like to assert as it did repeatedly during AZ v U.S. in 2012 that it has "preeminent" power over immigration, in a federal system like ours, it is simply not a given.  The U.S. is not a unitary country where the wishes of the national government always trumps those of the states.  The fact that the dispute ended up before the Supreme Court illustrates that the division of labor over immigration is not permanent or settled and the subject of ongoing negotiation between the national government and the states.

Of course the fact of the U.S. federal system is that it allows variation and therefore can be a double-edged sword.  On the one hand, the federal system creates 50 different laboratories for democracy as states are free to innovate to tackle social and political problems.  The benefit of this approach is that the entire nation can benefit from unique policy solutions pioneered by states that address common problems.  On the other hand, some of these innovations may not all be consistent with your own policy preferences.

Just as Arizona and other states chose to take a punitive approach to managing undocumented immigration, California and 9 other states and the District of Columbia have chosen to engage with undocumented immigrants in a more constructive manner.  Rather than hoping and waiting for that rosy day when undocumented immigrants will pack up and leave, California has taken a pragmatic approach to allow undocumented immigrants to obtain driver's licenses that would allow them to get to work legally and safely.  They took this stop in recognition that jobs, not licenses, are the main magnets for undocumented immigrants.  The state's leadership is not under the illusion that prohibiting driver's licenses will mean people will actually stop driving.  California and the other states and DC that allow driver's licenses for the undocumented recognize that the document at the most basic level ensures that persons have mastered the rules of the road and that they can purchase auto insurance.

In a federal system where 50 states can come up with 50 different solutions to social and political problems, there is no guaranteed that states will come up with consistently pro-immigrant policies.  But with the inside-the-beltway politics as it is, with its hyper-partisanship, vitriol, and gridlock, states for better or worse are the defacto managers of undocumented immigration for now. At least with a federal system, there is a possibility that there will be some states with benign immigration policies.  The state's and national interests on immigration don't always align, and sometimes for immigrants, that's a good thing.