Immigration, Federalism, and the Invasion Clauses: Who Has a Seat at the Table in Disputes Over the State Power to Repel “Immigrant Invaders”

By MEGAN NIEMITALO. Full Text.

In Arizona v. United States, the Supreme Court famously invalidated an Arizona statute that criminalized immigration violations and empowered state officials to enforce immigration law. Arizona seemed to settle the issue of whether states can regulate immigration for the following decade. In the last year, however, questions around the division of federal and state power over immigration regulation have once again come to a head. States, including Texas, Oklahoma, and Iowa, have begun enacting state-level immigration regulatory schemes that threaten to violate immigrants’ substantive rights.

One factor that distinguishes the present moment from 2012, the year the Court decided Arizona, is the emergence of two new constitutional provisions offered in defense of state immigration regulation: Article IV, Section 4’s Guarantee Clause and Article I, Section 10’s State War Clause. Both provisions govern the division of federal and state power during a time of invasion. Texas, in particular, has argued that the State War Clause authorizes states to defend their territory against what it characterizes as an immigrant invasion.

Relying on the Invasion Clauses allows states to frame legal challenges to their immigration laws as an issue of state sovereignty, rather than a violation of immigrants’ rights. This Note considers who can be party to claims predicated on the Invasion Clauses and how states’ reliance on these provisions may have the effect of excluding immigrants and interest groups from litigation. It examines the division of federal and state power over immigration, state standing doctrine, and states’ historical reliance on the Invasion Clauses to conclude that states and the federal government are the only proper parties to an Invasion Clause claim.

This Note argues that courts should avoid hearing an Invasion Clause claim to which immigrant interest groups are not party. Instead, courts should ensure that the parties with the most at stake have the opportunity to participate fully and meaningfully in litigation. To avoid such an outcome, this Note first argues that courts should not recognize state standing to bring an Invasion Clause claim related to immigration regulation. If courts do find that states have standing to bring such a claim, it argues in the alternative that courts should ensure immigrant interest groups are party to the claim either through intervention of right or appointment as amici.