Uncooperative Cooperative Federalism: What U.S. State Sovereignty Hawks Can Learn from E.U. Immigration Enforcement

• Author: Nathan H. Golden
• Position: University of Iowa College of Law
• Pages: 683-708

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2018 e Institute for Migrant Rights Press

UnCooPErativE CooPErativE

fEdEralisM

W U.S. S S H C L  E.U.

I E

Nathan H. Golden

University of Iowa College of Law

E-mail: nathan-golden@uiowa.edu

is article compares the U.S. and E.U.’s immigration enforcement regimes as

a means of assessing the success of the commandeering doctrine. Under the

commandeering doctrine, the federal government may not order around state

or local ocials, even in areas of exclusive federal jurisdiction. e doctrine is

generally viewed as protecting state sovereignty at the expense of federal policy

objectives. It has very recently become a hot topic in the context of immigration

enforcement, though most academic research has studied it in other contexts.

Aer considering the E.U.’s immigration enforcement regime—where member

states are the main enforcers of union law—this article concludes that allowing

states to take the lead in enforcement of U.S. immigration laws would not only

be more eective, but it would also better preserve the sovereignty of those states

by giving them more control.

Keywords: Immigration Law, Comparative Law, Sovereignty, Constitutional Law,

Federalism.

V Indonesian Journal of International & Comparative Law 683-708 (October 2018)

684

Golden

INTRODUCTION

Enforcement is one area where the E.U. and U.S. legal systems dier

substantially. To protect state sovereignty, the U.S. Supreme Court has

construed the Tenth Amendment to evoke what is called the “comman-

deering doctrine.” Under this principle, the U.S. federal government

may not order state and local ocials to help it enforce federal law,

even in areas of exclusive federal jurisdiction. is regime stands in

stark contrast to the European Union, which has no union level bu-

reaucracy to speak of. Rather in the E.U., union laws are enforced only

because the E.U. can compel member states to carry them out.

Academic commentary on the commandeering doctrine has several

holes which this article attempts to ll. Much academic commentary on

the commandeering doctrine has focused on a binary choice. Authors

see the commandeering doctrine as benecial to state sovereignty,

but harmful to eective enforcement of federal policy.1 While several

commentators have noted that the commandeering doctrine makes

the U.S. relatively unique,2 few have assessed it in a comparative

framework. Academics also have not thus far paid enough attention to

commandeering law in the context of immigration policy, even though

that appears to be the hottest topic in this area of law outside of the

academy.3

Inspired in part by Justice Breyer’s dissent in Printz v. United States,

this article compares these two very dierent enforcement regimes of

the U.S. and E.U. Rather than viewing federal enforcement and state

sovereignty as competing values, it asks whether a robust role for

states in the enforcement of union law may actually empower rather

than enslave the states. is becomes an easier question to answer

1. See, e.g., Evan H. Caminker, State Sovereignty and Subordinancy: May Congress

Commandeer State Ocers to Implement Federal Law, 95 C. L. R. 1001,

1002–03 (1995).

2. See Saby Ghoshray, Brandeisian Experiment Meets Federal Preemption: Is Co-

operative Federalism a Panacea for Marijuana Regulation?, 35 N. I. U. L. R.

511, 523 (2015).

3. See, e.g., Jerey Rosen, States’ Rights for the Le, N.Y. T (Dec. 3, 2016),

https://www.nytimes.com/2016/12/03/opinion/sunday/states-rights-for-the-

le.html