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2021 U. Ill. L. Rev. Online 39 (2021)
Restructuring Immigration Enforcement Federalism

handle is hein.journals/uilro2021 and id is 380 raw text is: RESTRUCTURING IMMIGRATION
Pratheepan Gulasekaram*
Perhaps more than other regulatory areas, the shift from Trump to Biden on
immigration is seismic. The Trump presidency pushed the constitutional and reg-
ulatory limits of executive control over immigration policy, forcing courts to
wrestle with the application of basic constitutional values in the immigration
context. His policies resulted in pitched legal battles over religious discrimina-
tion, family integrity, judicial review, separation of powers, state sovereignty,
and enforcement discretion. The Biden presidency, at least in its early stages, has
signaled a retreat from the constitutional brinkmanship of the Trump era.
Yet, while Biden's first 100 days suggests a shift in tone and policy from
his predecessor, every modern president - regardless of political stripe - has
committed to some level of immigration enforcement and has energetically used
executive authority to accomplish it. Indeed, in this regard, Biden benefits from
Trump's constitutional and regulatory boundary-pushing. Even if Biden crafts a
more humane immigration policy relative to his predecessor, he is certain to uti-
lize the power accreted to the executive to construct it, and rely on that legal
authority to justify enforcement prerogatives he implements within his articu-
lated vision.
In crafting the balance between humane policy and enforcement, the feder-
alism dimension of executive authority is often overlooked. A president's orien-
tation towards the role of states and localities is critical because of the increasing
importance of subfederal entities in either facilitating or resisting a president's
immigration agenda. As a very recent example, a lawsuit from the state of Texas
as plaintiff already has put on hold Biden's proposed 100-day moratorium on
deportations. Even outside of such high profile interventions, and within the con-
fines of long-standing federalism arrangements crafted by federal agencies,
states and localities play an indispensable role in whether or not a President suc-
ceeds in instantiating his enforcement plan. On the integrationist side, states and
localities possess the vital policymaking, infrastructure, and administrative
* Professor, Santa Clara University School of Law. Thank you to the University of Illinois Law Review
and Professor Jason Mazzone for the invitation to participate in this symposium, to Professor Hiroshi Motomura
for comments and suggestions, and to Khoa Nguyen (SCU Law '21) for research assistance.


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