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65 Vill. L. Rev. 1 (2020)

handle is hein.journals/vllalr65 and id is 1 raw text is: Ayers: Discriminatory Cooperative Federalism VILLANOVA LAW REVIEW VOLUME 65 2020 NUMBER 1 Articles DISCRIMINATORY COOPERATIVE FEDERALISM AVA AYERS* ABSTRACT Under the Equal Protection Clause, states can't (with certain excep- tions) discriminate against noncitizens. But Congress can. Sometimes, Congress tries to share this power to discriminate with states. This Article looks at cases in which Congress supports state discrimination using coop- erative federalism. (The phrase cooperative federalism refers to a form of lawmaking in which Congress induces or allows states to play a role in federally-created regulatory schemes.) For example, multiple provisions of the Welfare Reform Act of 1996 aim to encourage states to deny public benefits to noncitizens. The Wel- fare Reform Act attempts to work around the Equal Protection Clause by sharing with the states Congress's plenary power to treat noncitizens dif- ferently. It thus represents a form of cooperative federalism whose goal is discrimination. Cooperative-federalism schemes require the involvement of two ac- tors, federal and subfederal, each subject to their own legal constraints. In the immigration context, discriminatory cooperative federalism is vulnera- ble to challenges aimed at the federal actions (like claims that Congress * Assistant Professor of Law and Director of the Government Law Center, Albany Law School. She/her pronouns. Before announcing my gender transition, I published several articles under the name Andrew B. Ayers; I would be grateful to anyone who wants to cite those articles if they would use Ava Ayers as the author's name. For thoughtful comments on earlier drafts, I'm grateful to Ted De Barbieri, Steve Clark, Christine Chung, Seve Falati, Stephen Gottlieb, Antony Haynes, Keith Hirokawa, Chris Lasch, Jayesh Rathod, Patricia Reyhan, Sarah Rogerson, and the participants in the Immigration Law Scholars and Teachers Workshop at Drexel Law School and the Faculty Scholarship Forum at Albany Law School. For thorough and skilled editing, I'm grateful to Brett Broczkowski, Peter McDetermott, Gabriella Scott, Jennifer Pacicco, Shelly Krafka, Monika Chawla, and especially to Matthew Venuti. And for childcare and many other forms of support that made it possible for me to write this Article, I'm grateful to James Ayers, Miriam Trementozzi, Barbara Mitchell, Thomas Mitchell, and especially my wife, Emily Mitchell Ayers. (1)

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