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The relationship between federal immigration enforcement and state criminal, post-conviction law exemplifies certain inevitable complexities of preemption and federalism. Because neither perfect uniformity nor complete preemption is possible, we must consider two questions: First, whether (and, if so, how) state courts adjudicating rights should account for legitimate federal immigration law goals, such as uniformity and finality? Second, how should federal courts deploy preemption and federalism principles when faced with challenges by federal authorities to such state court actions? This article offers a framework of “dialogical federalism,” seeking to normalize certain tensions under a rubric of dialogue, rather than formal hierarchy or efficiency. The framework respects state courts’ rights adjudication, while also taking account of the history, current norms, structure of immigration enforcement, and contemporary models of preemption and federalism.

State enforcement agents and state courts are deeply engaged in immigration-related processes. But they often must do so in the context of historically powerful sub-federal systems, such as criminal law enforcement, retroactivity analysis, etc. The best state court decisions balance autonomy, fidelity to state precedent, and protections of rights with awareness of federal concerns. There is no precise formula, but nuanced state court adjudications should help federal courts, when considering preemption challenges to state actions, to resist formalistic (and unrealistic) field preemption or plenary power preemption. The benefits of this approach could be substantial. With equal protection as a backstop, it could empower the states to define the confines of political communities, thereby offering a truly transformative model of the new immigration federalism.


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8 Sep 2022
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  • Subject
    • Criminal Law

    • Criminal Procedure

    • Immigration Law

    • State and Local Government Law

  • Journal title
    • University of Miami Law Review

  • Volume
    • 70

  • Issue
    • 2

  • Pagination
    • 489-532

  • Date submitted

    8 September 2022