Inmigración irregular y federalismo de ejecución en los Estados Unidos de América

Abstract

No provision in the U.S. Constitution unequivocally authorizes the federal government to regulate immigration and control immigrants and a fundamental principle of the U.S. federal systemis that the federal government is one of “enumerated powers.” As a result, the federal government generally cannot exercise powers not expressly authorized by the U.S. Constitution. However, the federal government has actively regulated immigration for more than a century, with state and local governments having limited authority in the field. Even more, in Henderson, Chy Lung and other early cases from the late 19th century, state action in the field of immigration was held unconstitutional even though Congress had not acted. Soon after, giving an imprimatur to a plenary and exclusive federal regulatory power in the field, the Supreme Court reconstructed the federal immigration power from a form of commercial regulation rooted in Congress's commerce power, to an extra-constitutional regulatory authority that is inherent in national sovereignty. In 1891, the centralization process came full circle when Congress put in place a bureaucratic structure who assume sole control over the enforcement of immigration laws. Federal exclusivity over immigration was not remarkable in terms of constitutional doctrine when dual federalism was in place. For a century and a half between the Founding and the New Deal, the Constitution was understood to mandate “two mutually exclusive, reciprocally limiting fields of power—that of the national government and of the States,” and challenges to state or federal measures required judges to determine whether the right government was acting within the right sphere. After the New Deal constitutional revolution, the Court’s federalism doctrine generally abandoned dual federalism’s notion of separate spheres in favor of a regime of concurrent jurisdiction. This meant that both state and national authorities have power to address most subjects of regulatory concern. Although cooperative-multilevel regulation and enforcement is, since then, not only constitutionally possible but a pervasive feature of the U.S. federal system, some have argued that immigration is exceptional in that it retains traces from the old days of dual federalism. According to this school of thought, immigration is still an exclusive enclave of federal power in which states and localities are powerless to regulate. Any entry into this realm necessarily invades federal power, whether affirmatively exercised or not. In addition, inextricably linked to the proposition that the immigration power is exclusively federal is a non-devolvability principle some scholars have found enshrined in a constitutional requirement of national uniformity. The nature of the immigration plenary power is such that the federal government may be constitutionally prohibited from delegating its authority to the states, because invitation for local enforcement will result in a violation of the constitutional mandate for uniform immigration laws as local authorities will enforce federal immigration laws differently, creating, in effect, different immigration laws...