Immigration Laws: State Enforcement Powers Examined

Immigration laws in the United States are shaped by both federal and state governments. While federal laws set the groundwork for immigration policies, states have their own laws that can either support or challenge federal regulations. The federal government has exclusive power over immigration, but this does not preempt every state activity affecting non-citizens. State and local law enforcement agencies play a crucial role in immigration, often collaborating with federal agencies like ICE but facing various challenges and criticisms. States like Texas, Arizona, and Iowa are seeking new ways to criminalize immigration and weaponize local law enforcement against non-citizens, while states like California have enacted policies unfavourable to ICE and more protective of immigrants. The balance between federal and local control in immigration policy remains a contentious issue, with ongoing debates about the best approach.

Federal vs. state immigration laws

The United States federal government regulates immigration, but states also have their own laws that control immigration within their borders. The federal government's exclusive power over immigration is derived from the 1952 Immigration and Nationality Act (INA) and the 1986 Immigration Reform and Control Act (IRCA). The U.S. Congress controls all immigration-related regulations, while the White House is in charge of enforcing immigration laws. The INA dictates most aspects of federal immigration law, including visas and citizenship status.

The federal government has challenged many state laws based on jurisdiction, arguing that a "patchwork" of different immigration laws would not fix the country's immigration system. The U.S. Supreme Court has consistently upheld the federal government's jurisdiction over immigration law, but there are exceptions. While states must remain within specific parameters, they have some freedom in determining the laws of their own jurisdictions. For example, California is a "sanctuary state" that provides more generous benefits to immigrants, while Texas has been notoriously unfavorable to immigrants and has restricted their access to benefits.

State and local law enforcement officers play a role in immigration enforcement, often partnering with federal agencies like Immigration and Customs Enforcement (ICE). They can enforce the criminal provisions of the INA if state law permits, but they are generally precluded from directly enforcing the INA's civil provisions. For example, they can arrest someone for the criminal offense of entering the country illegally, but they cannot arrest someone solely for illegal presence for the purpose of deporting them.

Immigrant rights groups and civil liberties groups often challenge state laws affecting immigration, especially those requiring proof of citizenship or legal residence, as they can lead to racial profiling. Requirements for law enforcement to check the immigration status of suspects have also been challenged. Critics argue that laws requiring a photo ID for voting violate the Voting Rights Act of 1965. For instance, the South Carolina Hispanic Leadership Council filed a lawsuit against the state, claiming that a law requiring police to check the immigration status of any person stopped was unconstitutional.

State enforcement of criminal provisions

Immigration law in the US is defined by Congress through the Immigration and Nationality Act (INA), which contains both criminal and civil enforcement measures. The federal government has exclusive power over immigration law, but states and local law enforcement agencies have traditionally been permitted to enforce certain criminal provisions that fall under their jurisdictions. This includes the criminal offense of entering the country illegally. For example, state and local law enforcement officers can question the immigration status of someone they have detained for a state or local violation and contact an ICE agent at the Law Enforcement Support Center (LESC). The federal agent may then place a detainer on the suspect, requesting the state official to keep them in custody until their immigration status can be determined.

However, critics argue that state involvement in immigration law should be limited to express congressional indication, and that federal law only authorizes state and local enforcement of immigration laws in specific circumstances. The federal government has challenged many state immigration laws based on jurisdiction, arguing that a "patchwork" of different laws will not fix the country's immigration system. Civil immigration law enforcement, including the apprehension and removal of deportable aliens, has generally been viewed as a federal responsibility, with states playing a supporting role.

Some states, like California, have restricted partnerships with ICE, creating policies that go against the interests of ICE enforcement within the state. Other states, like Texas and Florida, have greater cooperation with federal authorities. The Department of Homeland Security (DHS) has several initiatives with state and local law enforcement agencies to facilitate the investigation, arrest, and apprehension of foreign nationals who have violated the law. The DHS also works to ensure that state and local governments have the information necessary to fulfill law enforcement, citizenship, or immigration status verification requirements.

Civil immigration law enforcement

While federal laws set the groundwork for immigration policies in the United States, states have their own laws that can either support or challenge federal regulations. The federal government has exclusive power over immigration, but this does not preempt every state activity affecting non-citizens.

Immigrant rights groups, civil liberties groups, and the federal government sometimes challenge state laws affecting immigration, especially laws that require proof of citizenship or legal residence. Critics say that laws requiring a photo ID for voting violate the Voting Rights Act of 1965. For example, the South Carolina Hispanic Leadership Council once filed a lawsuit against South Carolina, claiming that the law's rule that state and local police check the immigration status of any person stopped was unconstitutional.

The federal government has challenged many of these state laws based on jurisdiction, arguing that a "patchwork" of different immigration laws would not fix the country's immigration system. In Arizona v. United States (2012), the Supreme Court struck down several provisions of Arizona's immigration law, affirming federal supremacy in immigration enforcement. Similarly, in Plyler v. Doe (1982), the Court ruled that states cannot deny free public education to children based on their immigration status.

Local law enforcement agencies often partner with federal agencies like ICE (Immigration and Customs Enforcement) to enforce immigration laws. However, some states, like California, have restricted such partnerships. In contrast, states like Texas and Florida have greater cooperation with federal authorities, which can affect even migrants with peaceful reasons for being in the United States.

Racial profiling and immigration enforcement

Immigration is a federal concern, and federal law authorizes state and local enforcement of immigration laws only in specific circumstances. The federal government has challenged many state laws based on jurisdiction, arguing that a "patchwork" of different immigration laws will not fix the country's immigration system.

State and local law enforcement officers cannot arrest someone solely for illegal presence for the purpose of deporting them because it is a civil violation. However, they can arrest someone for the criminal offense of entering the country illegally. For example, when state or local officers question the immigration status of someone detained for a state or local violation, they may contact an ICE agent at the Law Enforcement Support Center (LESC). The federal agent may then place a detainer on the suspect, requesting that the state official keep the suspect in custody until their immigration status can be determined. Nonetheless, the continued detention of such a suspect beyond the needs of local law enforcement designed to aid in the enforcement of federal immigration laws may be unlawful.

Immigrant rights groups and civil liberties groups often challenge state laws affecting immigration, especially those requiring proof of citizenship or legal residence and those that require law enforcement to check the immigration status of suspects. Critics say that laws requiring a photo ID for voting violate the Voting Rights Act of 1965. For example, the South Carolina Hispanic Leadership Council once filed a lawsuit against the state, claiming that the law's rule that state and local police check the immigration status of any person stopped was unconstitutional.

Racial profiling has been a significant issue in immigration enforcement. In 2025, critics complained that raids and deportations under President Donald Trump's administration were targeting individuals because of their race or skin color, including American citizens from Native tribal nations. A study by the University of Illinois at Chicago found that 70% of unauthorized immigrants and 40% of Latino-identifying individuals are less likely to deal with the police if they will be questioned about their or someone else's immigration status.

In North Carolina in 2012, Alamance County Sheriff Terry Johnson was sued by the U.S. Department of Justice for systematically and unlawfully targeting Latino residents for investigation, traffic stops, arrests, seizures, and other enforcement actions. Similar programs to the 287(g) agreement in other localities have also increased the number of Latino arrests for minor infractions compared to other ethnic groups. In Virginia, the Prince William County (PWC) 287(g) agreement was amended to limit the scope of inquiry into an individual's immigration status and expressly prohibit racial profiling by the PWC police.

Immigration federalism

Enforcement federalism deals with the extent of local assistance or resistance to federal removal policies. While critics argue that immigration is a federal concern, state enforcement of the criminal provisions of the INA (Immigration and Nationality Act) is seen as consistent with the state's police power to make arrests for criminal acts. For instance, state and local law enforcement officers can arrest someone for the criminal offence of entering the country illegally. However, they cannot arrest someone solely for their illegal presence for deportation purposes, as it is a civil violation.

Integration federalism, on the other hand, includes measures to assist immigrants, regardless of their status, in settling and acculturating to life in the United States. This form of federalism promotes a locally driven integration policy, supported by national-level commitments to information sharing, coordination, and resource support.

The dynamic nature of intergovernmental relations shapes the country's immigration policy. Developing a comprehensive strategy for immigration federalism requires a clear understanding of the appropriate limits of immigration enforcement and a set of beliefs about the place of immigrants with different legal statuses in society. Resistance to enforcement at the local level, such as "sanctuary" laws, is a reaction to the unintended consequences of localized immigration policing. This resistance is an essential aspect of a "new immigration federalism," which aims for a more theoretically sound approach to immigration policy.

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