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
SUMMARY

This 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 officials, even in areas of exclusive federal jurisdiction. The doctrine is generally viewed as protecting state sovereignty at the expense of federal policy... (see full summary)

 
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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

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