Federal immigration enforcement turns increasingly on criminal law outcomes, with criminal convictions triggering deportability,1 detention,2 and ineligibility for discretionary relief.3 In fiscal year 2018, the United States deported 145,000 noncitizens who were convicted of some crime, comprising 57% of deportations that year.4 Because the vast majority of U.S. criminal convictions are for state offenses,5 conviction-based immigration enforcement depends crucially on state and local law enforcement to investigate and prosecute noncitizens.
This creates tensions when federal, state, and local actors disagree on how immigration laws should be enforced. Such tensions come in various permutations: when states seek to enforce immigration laws more harshly than the federal government,6 when states force cities to cooperate with federal immigration authorities,7 or when local actors, cities, or states curtail such cooperation,8 either because they think it will impair local law enforcement9 or because they disagree with it.10
Though such tensions turn increasingly into lawsuits,11 no state has yet challenged the central premise of this system: that the federal government may condition deportation on the bare fact of a state conviction — even when the state that obtained it disagrees. This Note argues that such involuntary “triggering” effects an unconstitutional commandeering of the state’s criminal law enforcement.12 To be sure, the federal government itself detains and deports noncitizens, demanding no state assistance at the final step. But the process begins earlier — sometimes irrevocably — with state police, prosecutors, judges, and juries. By fulfilling their responsibilities under state law, these actors trigger significant federal sanctions on the individuals the state seeks to regulate — whether or not the state believes those sanctions to be warranted.
This amounts to commandeering. Formally, crime-based deportations don’t normally result from a federal determination that a noncitizen committed crimes; they result rather from the federal determination that a state adjudicated the noncitizen guilty of (state) crimes. Under the Court’s commandeering cases, that should make all the difference: the federal government has elected to base deportation not on direct regulation of individuals, but rather by operating through states. Practically, the case is stronger still: by triggering deportation based exclusively on state convictions, the federal government outsources the tasks of investigating criminal conduct of noncitizens, apprehending them, and adjudicating their guilt. The federal government thereby gets the benefits of the state’s criminal justice system without sharing in its costs. And because the federal government’s (in)action flows inexorably from the state’s, no one can be quite sure who to blame when the federal government detains and deports someone (or fails to do so). Political accountability — the commandeering cases’ lodestar — is eviscerated.
Of course, the federal government maintains broad immigration powers, including the power to detain and deport noncitizens guilty of reprehensible conduct. It may, if it chooses, ascertain that conduct on its own and act accordingly. If it hopes to outsource such determinations, it may ask for and receive help from consenting states’ law enforcement. And it may coax or coerce states disinclined to help in myriad ways — including by conditioning federal funds on their cooperation. It simply cannot deny states all opportunity to (withhold) consent to their criminal justice systems’ serving federal immigration enforcement.
Given the pervasiveness with which federal action turns on state law classifications, this Note’s argument may appear disruptive, perhaps radically so. But even assuming that its central premise (that triggering unwelcome federal action based on a state’s regulation presents a commandeering problem) extends to contexts less core to state sovereignty than criminal law, its effect will likely prove practically limited for the same reasons that the original commandeering cases proved practically limited. Because commandeering issues disappear when the state consents to its participation in federal regulation and the federal government retains powerful political tools to secure that consent, accepting this Note’s analysis will only bring disruption in areas like immigration enforcement: where the federal government seeks to condition especially controversial federal action on especially important forms of state regulation. These are, of course, the cases where the federalism concerns which animate commandeering doctrine count the most.
This Note proceeds in four parts. Part I canvasses the anticommandeering cases and their application so far to immigration enforcement. Part II explains how that enforcement works, including the extent to which it operates through state law enforcement. It argues that until recently states could control the immigration outcomes of state convictions, making the current regime’s inattention to state preferences relatively novel. Part III advances the primary argument: triggering deportation exclusively based on state convictions commandeers states’ criminal justice enforcement. Part IV considers and finds wanting two objections: first, that applying commandeering principles to triggering underweights federal interests or threatens the immigration system’s workability, and second, that states retain a choice whether to prosecute.
I. Commandeering Doctrine
This section charts the commandeering doctrine’s development, which began in 1992 in New York v. United States.13 There, the Court struck down a federal requirement that states “take title” to nuclear waste produced in their boundaries or enact a congressionally dictated regulatory program.14 Unlike other carrot-and-stick provisions, the take-title provision “directly compel[led states] to enact and enforce a federal regulatory program,” thereby “commandeer[ing their] legislative processes.”15 This Congress could not do: “[w]hether one views the take title provision as lying outside Congress’ enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision [was] inconsistent with the federal structure of our Government established by the Constitution.”16
Acknowledging that this principle had little basis in constitutional text, the Court turned instead to history and structure, reasoning that the whole point of replacing the Articles of Confederation with the Constitution was to allow the federal government to operate directly on citizens, rather than through sometimes recalcitrant states.17 This observation led to the debatable inference that by empowering the federal government to regulate individuals, the Constitution implicitly rescinded its prior powers to regulate states as states.18 The Court further elucidated two substantive goals served by anticommandeering: First, by enforcing a strict separation between federal and state power, it served as a structural guarantor of individual liberty.19 Second, it promoted political accountability, as the federal government could not take credit for a program’s benefits while shifting unpopular aspects to states.20
In Printz v. United States,21 its second anticommandeering case, the Court held that the federal government not only can’t “compel the States to enact or enforce a federal regulatory program . . . [but also] cannot circumvent that prohibition by conscripting the States’ officers directly.”22 Printz also expanded upon the anticommandeering rule’s goals, glossing both the protection of liberty and political accountability rationales with a particular emphasis on the problem of regulatory cost-shifting.23 In response to evidence that the Framers intended state officers to administer federal programs, Printz noted the “critical point . . . [that such intent failed to demonstrate] that Congress could impose these responsibilities without the consent of the States.”24
Most recently, the Court in Murphy v. National Collegiate Athletic Ass’n25 struck down a provision of the Professional and Amateur Sports Protection Act26 (PASPA) forbidding states that did not already permit sports gambling from “authoriz[ing]” it.27 Emphasizing the three substantive values protected by anticommandeering as laid out in New York and Printz — protecting individual liberty by diffusing power, promoting political accountability, and preventing regulatory cost-shifting28 — the Court held that Congress could no more “forbid” states from enacting laws than it could command them to enact laws.29 PASPA, in seeking to prevent sports betting not through criminalization or direct prohibition but through ordering states to prohibit or refrain from authorizing it, impermissibly outsourced federal regulation to states.30
The anticommandeering rule has attracted its share of critics: it relies on general invocations of “federalism” unmoored from specific constitutional provisions,31 its historical analysis of the Constitutional Convention and early practice is contested,32 and its accountability arguments are riddled with speculation on how voters assign credit or blame33 and fail to distinguish garden-variety preemption.34 But the rule has achieved qualified endorsement by “process federalists,” who, while less concerned than the Court with sovereignty, endorse the rule as a modest but effective safeguard of pluralistic state policymaking.35
The Court’s decision in Murphy triggered immediate speculation over how anticommandeering principles might apply to the standoff between the Trump Administration and “sanctuary” jurisdictions opposed to its immigration policies.36 Commandeering concerns had already led courts to construe federal immigration “detainers” — directives that state law enforcement hold noncitizens forty-eight hours beyond the time they would otherwise be released — as requests, rather than mandates.37 Since Murphy, courts have grown more willing to question federal statutes prohibiting states from restricting the flow of immigration-related information between state officers and the federal government; while the Second Circuit upheld such a provision in the 1990s,38 the distinction it drew between “affirmative[] conscript[ion]” and “prohibit[ions]”39 is roughly the one Murphy rejected.40 As a result, at least three district courts since Murphy, including one in the Second Circuit, have concluded that federal efforts to stop states from regulating their employees’ use of immigration information constitute commandeering.41
The frequent fights over how federalism in general and anticommandeering in particular translate to the immigration context seem likely to grow in number and intensity,42 given immigration’s increasing political valence,43 the dependence of federal immigration enforcement on state criminal law enforcement,44 and the extent to which state and local interests may conflict with federal immigration priorities.45 Already, some states seek to insulate state criminal law enforcement from federal immigration enforcement in whatever ways they can — by selectively choosing which charges to bring,46 refusing to collect and share data on detainees’ immigration status,47 declining to inform federal immigration authorities when jailed noncitizens are due for release,48 and denying federal immigration authorities access to state correctional facilities.49
II. Immigration Enforcement and State Criminal Law
While commandeering doctrine plays an increasing role in state challenges to federal immigration policies, no state has yet used the doctrine to challenge the federal government’s conviction-based detention and deportation regime. This Part explains that regime. It demonstrates that the federal government has only recently sought to condition so much immigration enforcement on state criminal law enforcement, even while it dispensed with mechanisms that allowed states to control the immigration consequences of state criminal law. It then describes how federal immigration enforcement turns exclusively on state criminal convictions — rather than noncitizens’ actual criminal conduct. Though primarily descriptive, this Part helps establish that conviction-based deportation triggering cannot be shielded from commandeering scrutiny because of longstanding practice; that it really does operate through states, rather than on individuals; and that a system that protects states’ sovereignty is not only possible, but in fact existed until 1990.
The federal government asserted little control over immigration until the late nineteenth century, when it sought to restrict Chinese immigration in particular.50 Before then, it was unclear whether the federal government was even thought to possess immigration powers,51 let alone the near-plenary power it exercises today.52 In its first forays into immigration enforcement, it denied entry to noncitizens with criminal convictions (as states and colonies had done before).53 But only in 1917 did Congress make noncitizens deportable for postentry criminal conduct: namely, for committing “crimes involving moral turpitude” (CIMTs).54
At the time — and for the next seventy years — state or federal sentencing judges could issue binding Judicial Recommendations Against Deportation (JRADs) for any CIMT conviction.55 This despite increasing perceptions that control over immigration was a federal prerogative;56 Congress nonetheless believed that the sentencing judge, federal or state, should be able to prevent convictions from triggering deportation.57 While courts disagreed as to whether JRADs precluded any consideration of CIMT convictions or merely prevented them from conclusively establishing deportability,58 the question remained relatively inconsequential given how rarely conviction-based deportability grounds were invoked: in fiscal year 1980, for example, only 206 noncitizens were deported for criminal violations (about one percent of deportations that year).59
Though Congress at various points augmented deportability grounds with a limited set of automatic-weapon and controlled-substance offenses, CIMTs remained the primary (if rare) conviction-based deportability grounds through the early 1980s.60 That changed in the decade’s second half: first in 1986, when Congress vastly expanded drug-related deportation grounds to include all convictions related to a federally controlled substance,61 and second in 1988, when Congress made noncitizens deportable for “aggravated felonies.”62 At the time, aggravated felonies involved convictions for mostly violent offenses with sentences greater than five years, but due to Congress’s repeated expansion of the category throughout the 1990s and early 2000s, they now reach many violent or nonviolent crimes for which the sentence exceeds one year (suspended or not).63 What’s more, controlled-substance convictions, aggravated felonies, or two or more CIMTs now trigger mandatory federal detention throughout the course of deportation proceedings.64 As a result of these changes, conviction-based deportations skyrocketed from fewer than 1000 through 198465 to almost 70,000 by 199966 and more than twice that today.67
Equally important for this Note’s purposes, Congress also severely curtailed discretionary pathways to relief. In particular, just two years after making JRADs available for the new aggravated-felony category in 1988, it eliminated them altogether.68 Congress also severely restricted the Attorney General’s authority to grant waivers for conviction-based deportation, making deportation a more or less mandatory consequence for, among other things, aggravated-felony convictions.69
Throughout, Congress’s focus remained on the fact of a criminal conviction, rather than the associated misconduct. Federal immigration authorities do not ask what a noncitizen actually did; they ask instead whether the state grounds of conviction “match” the federal deportation grounds.70 This “categorical approach” is anchored in the Immigration and Nationality Act’s71 (INA) specification that deportability and inadmissibility are triggered when a noncitizen is “convicted” of certain crimes,72 and promotes (in theory) efficient, predictable enforcement.73
To illustrate the categorical approach in action, consider what happens when Congress ties deportation to “burglary” convictions.74 The Supreme Court has interpreted Congress’s references to “burglary” to mean “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”75 If a state’s burglary statute criminalizes only conduct incorporated by generic burglary, then a conviction under the state statute qualifies as grounds for deportation. If, however, the state adopts a broader burglary definition — say it criminalizes breaking or entering a car, as well as a building or structure — then a conviction under its burglary statute may not establish generic burglary, and therefore deportability, under the INA.76
The noncitizen’s actual conduct is irrelevant; what matters is what the state thought about her conduct, as expressed through its conviction.77 To take the most obvious example, if one state (State A) criminalizes conduct corresponding to a federal deportability ground, while another state (State B) does not, then a noncitizen in State A faces deportation where a noncitizen in State B who engaged in the same conduct does not. But differences can be more subtle, or even arbitrary; perhaps States A and B each criminalize distribution of any of 101 substances, 100 of which are federally controlled. If State A requires proof as to which of the 100 drugs a defendant distributed, then convictions under State A’s statute may trigger deportation under the INA (unless the defendant is convicted of distributing the single substance not on the federal schedule). But imagine State B does not require proof of which substance was distributed, allowing convictions so long as the defendant is proved to have possessed any controlled substance — then, assuming that there is a “realistic probability” that someone in State B might be prosecuted for distributing the single drug not on the federal schedules,78 any distribution conviction in State B will fail to establish deportability, even though the vast majority of its distribution cases likely involve a federally controlled substance.79 The point here is that the federal immigration consequence depends crucially on the state classification, rather than the noncitizen’s conduct.
This increased entwinement of federal immigration law with state criminal law blurs boundaries between the two, leading to increased scholarly treatment of both systems as parts of a unified whole.80 The Supreme Court’s landmark 2010 decision in Padilla v. Kentucky81 recognized this reality: in holding that effective assistance of criminal defense counsel under the Sixth Amendment requires at least some warning of a conviction’s likely immigration consequences, the Court acknowledged both that deportation may constitute a harsher sanction than criminal punishment and that its likelihood turns fundamentally on the precise resolution of state criminal charges.82
The result is that states that wish to avoid triggering federal immigration consequences with which they disagree are forced to distort or refrain from exercising their criminal enforcement powers. As detailed above, several jurisdictions prohibit gathering information relating to immigration status so as to avoid any legal obligation to share that status with federal authorities.83 Others adjust the criminal charges they bring or even refrain from bringing them altogether in order to avoid the most damaging immigration consequences.84 Such tactics have generated enormous controversy, with the current administration criticizing them as fundamentally unfair to citizens who receive harsher criminal treatment for the same conduct.85 And yet these distortions seem the inevitable consequence of tethering federal immigration decisions to those of states that may substantively disagree with those decisions.
III. State Crime–Based Deportation as Commandeering of State Criminal Enforcement
This Part makes the case that deporting a noncitizen on the sole basis of a state criminal conviction constitutes an impermissible commandeering of that state’s criminal enforcement process where the state does not want its conviction to be so used. It first argues that doing so involves acting on states, rather than individuals: both formally, in the sense that federal action turns exclusively on decisions by state government, rather than individuals’ actions, and practically, in the sense that criminal justice bureaucracies of all fifty states are being transformed, whether they like it or not, into tools of immigration enforcement. It then considers how the functional considerations invoked by the Court in its commandeering cases — protecting individual liberty, promoting political accountability, and preventing regulatory cost-shifting — are implicated in the context of immigration enforcement.
Before laying out this argument, a fundamental point bears mentioning: the unconstitutional commandeering occurs only when the state objects to its criminal justice system being used to effect deportation. In many, perhaps most, cases, the state may have no such objection.86 As Printz made clear, such cases simply do not bear on what “Congress could impose . . . without the consent of the States.”87
1. The INA Targets “Convictions,” Not Conduct. — As outlined in section I.A, the basic structural and historical argument underlying the prohibition on commandeering is the idea that in trading the Articles of Confederation for the Constitution, we traded a federal government empowered to operate exclusively on states for one that could operate exclusively on their citizens.88 Under that framing, federal deportation decisions — even those based on state criminal convictions — might seem to pose no commandeering problem, because the federal government clearly acts upon an individual by deporting him. But, as explained above, this action does not result from federal determinations about a noncitizen’s conduct; it rather is triggered when the federal government determines that the state acted a certain way by “convict[ing]” the noncitizen.89
The result is that a harsh federal penalty90 turns exclusively on the actions of state officers who investigate the crime, determine responsibility, and prove guilt to state judges or juries. Such “triggering” is not quite the direct impressment of state officers that the Court forbade in Printz, but it involves the same central feature of commandeering cases: the federal government’s operating on or through states, rather than directly on individuals.
To see why, consider the case where the federal government chooses to base federal action entirely on some quintessentially state or local legal classification that a state government can’t very well avoid making.91 Imagine too that the triggered federal action is something which the federal government indisputably has power to do independently but which is only loosely related to the state’s triggering action, and which the state might not like. For example, the federal government might choose to ban from driving on any interstate highway all drivers who receive any driving citation under state law, no matter the reason for the citation, the severity of any associated penalty, or the procedures the state might have in place for restoring the driver’s privileges (if they were ever even suspended).92 Such a law would necessarily and substantially affect how states go about issuing driving citations, because the state knows any effort it makes to regulate driving will result in drastic federal consequences to the regulated individuals. And while the federal government may be interested in regulating driving by individuals, it has chosen to do so through the state’s regulatory process — whether the state likes it or not.
One might respond that such “triggering,” to the extent it involves acting through the state, still falls short of outright impressment as contemplated in the Court’s commandeering cases. The federal government regularly conditions federal action on state action: for instance, when it offers contingent federal funds — an offer it can make subject to only weak constitutional constraints, far from the commandeering cases’ flat prohibition.93 But as the Court itself noted in New York, the primary distinction between the spending and commandeering cases is consent: in the former but not the latter cases, the “residents of the State retain the ultimate decision as to whether or not the State will comply” with the federal regulatory objective.94 This is why conditions on federal funds must be expressed unambiguously and in advance,95 and the state must be actually, not just theoretically, equipped to say no.96 What the federal government does in the driving hypothetical or in immigration enforcement is different; it is not offering an incentive or threatening a penalty, but rather tying its own regulation to the state’s in such a way as to deny the state any opportunity to opt out of the federal regime to the extent it hopes to regulate at all.
Of course, in tying federal immigration enforcement to state convictions, the federal government doubtless is trying to get at individuals’ underlying criminal conduct. Given its power to condition immigration consequences on such conduct, it may seem a little silly to ask it to close its eyes to the reality of a state conviction just because the state asks it to.97 But that is essentially a criticism of commandeering doctrine itself, which does not allow the federal government to dictate that federal problems be solved through state governments even where it determines that doing so would be most sensible. And, to the extent the federal government really does find it most convenient to operate through state police, prosecutors, judges, and juries, rather than bear the cost of conducting independent investigations and adjudications, it retains powerful tools to entice states to go along.98 What it can’t do is hijack the state’s criminal law enforcement process, upsetting the state’s attempts to calibrate punishment to conduct, or perhaps even preventing it from exercising its criminal enforcement powers altogether.99
2. State Law Enforcements Are Transformed — Perhaps Unwillingly — into Agents of Federal Immigration Law. — If the INA’s convictions provisions operate formally through states, the argument that the INA practically transforms state law enforcement into federal immigration agents seems even stronger. Federal law enforcement rises and falls with the decisions of state law enforcement; that is why recent fights over sanctuary policies are so contested.100 As explained in section II.A, this is not how immigration enforcement used to work: though federal immigration law paid some attention to state criminal outcomes for the last century, only recently did so many detention and deportation determinations come to turn exclusively on the fact of a state conviction. Simultaneously, Congress removed most pathways for canceling deportation based on the facts of a particular case.101 Most important here, state judges formerly could but no longer can control the immigration consequences of state convictions with JRADs.102
What’s more, Congress now sweeps up a much broader range of state crimes as potential predicates for deportation,103 from the single “crime of moral turpitude,” codified in 1917, to crimes of violence, crimes involving fraud or deceit, crimes involving firearms, and even essentially all state drug crimes involving a federally controlled substance.104 The INA’s threshold for aggravated felonies — which link mandatory detention, deportation, and bars to future entry — has been defined downward to include broad swaths of state convictions.105 And be-cause this harshening has occurred alongside the harshening of state criminal laws,106 more and more state crimes trigger immigration consequences even holding federal law constant. This is reflected in the immigration arrest and deportation statistics, with about 57% of total deportations driven by a criminal offense,107 up from about 1% in fiscal year 1980.108
State law enforcement therefore plays a crucial role in federal immigration outcomes, whether or not the state consents. As a result, the current system does not differ so sharply from the “any driving citation” hypothetical posited in section A.1.109 To be sure, unlike that hypothetical, deportations are triggered only by state convictions corresponding to particular federal deportation grounds, not by all criminal convictions under state law. But those grounds are pervasive, and fundamental to state criminal law enforcement — analogous to a driving-citation trigger that targeted all citations for “speeding.”110 The problem is still the same: the state cannot regulate “speeding” without the federal government seizing (and free riding) on the state’s regulatory action.
In fact, the Supreme Court already recognizes the extent to which state criminal law enforcement operates as an agent of federal immigration enforcement, determining that all state criminal defense counsels are constitutionally obligated to warn their clients of the adverse immigration consequences likely to be triggered by a state conviction.111 But because those consequences may be complex or arbitrary — turning on the nuances of how a particular state statute, as written, interpreted, and applied, intersects with federal removal grounds112 — the Court acknowledges that state defense counsel (not to mention state prosecutor or sentencing judge) cannot always predict those consequences,113 let alone control them. The result is an immigration enforcement system that employs state law enforcement throughout its administration, while denying the state any role in its outcomes.
As elaborated by the Supreme Court, anticommandeering serves three substantive values: the preservation of liberty through the diffusion of state power, political accountability, and preventing the federal government from regulatory cost-shifting.114 Unsurprisingly, given the formal and practical senses in which federal immigration enforcement operates through state criminal law enforcement, crime-based deportations clearly implicate these values. To take the first point, commandeering doctrine purports to preserve individual liberty by preventing the federal government (whose powers are enumerated) from assuming and centralizing powers not delegated to it.115 Such a story applies clearly to the INA’s conviction provisions, which allow the federal government to regulate huge swaths of potential and actual conduct by millions of people in areas core to state police powers, where Congress’s own regulatory powers are bounded.116
The Court’s concern about accountability is less focused on how much power gets exercised than with ensuring that citizens know who exercises it.117 Under this framework, the problem with triggering deportation based on state convictions is obvious, as it is difficult to imagine a system where responsibility for a noncitizen’s ultimate deportation is more diffuse or obfuscated. State police or prosecutors can legitimately claim that their decisions were based on local enforcement priorities and that to act differently would favor noncitizens over citizens.118 State criminal defense counsel, though constitutionally obliged to warn about a conviction’s likely immigration consequences, may be unable to foresee those consequences — as the Court acknowledged in the same opinion recognizing the obligation.119 Federal immigration agents may see their hands tied by state convictions, which may mandate a noncitizen’s detention and ultimate deportation.120 Perhaps the President might impose some order on a statutory hodgepodge of duties to detain or deport, but the extent of any discretion to tailor enforcement efforts is unclear,121 and her priorities may, at any rate, conflict with those of the states.122 All these actors might wave their hands and point to Congress, but Congress can fairly kick the ball back to states or the President, claiming that it is perfectly reasonable to base immigration status on “crimes of violence,” “firearms offenses,” or “drug offenses,” and that any error in application is the fault of over- or under-aggressive state or federal enforcement. This blame merry-go-round pretty well describes the sanctuary city debate, with all levels of government criticizing each other for unfairly putting them into a bind.123
As for the final rationale behind the anticommandeering rule — the prevention of regulatory cost-shifting — it is hard to imagine a regime that shifts costs more than the present one. The federal government’s system of immigration regulation targets an expansive set of potentially criminal conduct by noncitizens, but state police, prosecutors, judges, and juries are the ones who must actually investigate, prosecute, and adjudicate such conduct. The federal government therefore reaps the benefits of state criminal regulation without sharing its costs.
IV. Objections and Responses
Applying a commandeering analysis to conviction-based deportation triggering raises two serious concerns. First, applying commandeering principles to federal action triggered by state action — as opposed to direct federal compulsion — undervalues federal interests by granting states a trump over the sorts of action necessary to any system of dual government. Second, states retain the choice to refrain from prosecuting, and in that sense are not compelled to participate in any federal program with which they disagree. This Part explains why neither concern is convincing.
The nature of our system of dual sovereignty is that federal law pervasively presumes and relies on the backdrop of state regulation.124 Given that backdrop, this Note’s central argument — that federal reliance on state convictions without state consent constitutes commandeering — should engender a certain amount of skepticism. At least, it may systematically overweight state sovereignty while undervaluing any interest in effective federal action; at most, it seems to strike at the workability of dual governance.
To see why these concerns are unfounded, it is helpful to return to Printz’s explanation for why the Founding-era expectation that state officers would enforce federal law did not doom its anticommandeering rule.125 Here, as there, the determinative factor remains state consent.126 States presumably have little objection to ordinary federal bankruptcy, tax, or other provisions that depend incidentally on state classifications. And any concern that this Note’s analysis would give states a tool for blackmail — that would enable them to threaten to gum up routine federal governance as a way to extract concessions — neglects the same powerful tools the federal government maintains for incentivizing state cooperation that prevented the original anticommandeering rule from proving particularly disruptive.127
In particular, federal power to condition federal funds on state compliance should take care of bald recalcitrance.128 What this Note’s framework instead leaves open is the possibility that states might, at some cost to themselves, decline to allow their governmental actions to serve as predicates for federal action with which they strongly disagree — opting out, in other words, at precisely those times when their interest in not advancing a federal objective is the strongest.129 In such cases, federal regulation hardly need grind to a halt, as Congress could simply regulate individual conduct directly. In the immigration context, for instance, Congress has already authorized detention or deportation based on a noncitizen’s acts of sabotage or espionage, whether or not a state has obtained a related conviction.130 To the extent it hopes to reach a broader variety of criminal conduct and proves unable to entice states to allow their law enforcement to be used in federal enforcement, Congress could authorize immigration penalties based on direct federal investigation and adjudication of noncitizens’ criminal conduct.
Even if this Note fails to persuade that commandeering theory generally requires states to retain at least some control over federal use of state law, there remains a powerful case for curtailing federal authority to rely on nonconsenting states’ convictions to effect deportation. State criminal law enforcement, effectively impressed into federal service in the ways described above, is particularly essential to state sovereignty; what’s more, the federal government’s broad powers to regulate immigration directly make such impressment particularly unnecessary. That state sentencing judges were empowered between 1917 and 1990 to veto the immigration consequences of state convictions should alleviate concerns about such a system’s workability. To the extent courts were more inclined to balance state interests against federal needs — as opposed to adopting the commandeering cases’ categorical rule131 — the current immigration system seems like a clear case of state interests being underweighted.132
One last, powerful objection to applying a commandeering analysis to conviction-based deportation triggering is the basic intuition that the state may choose not to convict — in contrast to the commandeering cases, where the state’s action was compulsory. Under the current regime, this may in fact be states’ only way out of enforcing federal immigration law.133 But this falls short of the type of choice the Court’s federalism cases require: a meaningful opportunity not to participate in a federal regulatory program with which states disagree.
For one thing, conviction-based deportation triggering seems to violate the combination of two explicit constraints articulated in the commandeering cases: first, New York’s explanation that Congress does not make coercion constitutionally palatable by giving states a choice between two unacceptable options,134 and second, Murphy’s rule against federal commands that states not regulate.135 Under the INA, the state’s “choice” is between triggering unwelcome federal immigration enforcement, on the one hand, or being forced to not enforce its own criminal laws, on the other. That choice is especially problematic because of state criminal regulation’s unique role in state sovereignty,136 which makes it altogether unclear whether the federal government could displace state criminal law enforcement even if it wished.137 And whether or not it constitutionally could fill the gap, that’s of course not the deal it currently offers the states, which must either go along with the federal immigration consequences of their convictions or refrain from criminally regulating at all.
More fundamentally, the “choice” posed by the INA fails to solve the commandeering problem because it eliminates any way for state governments to remain accountable for their participation in a federal regulatory program. This requirement is precisely how New York distinguished between (acceptable) spending incentives or “cooperative federalism” models,138 and (unacceptable) commandeering.139 And it is entirely absent in the case of conviction-based deportation triggering; because states can only avoid enforcing federal immigration law by not enforcing their own criminal laws, accountability for one choice is inextricably bound up with accountability for the other. States thereby lack an ability to opt into or out of the federal immigration scheme.140 Even leaving aside fairness concerns raised by a state’s choice to not prosecute noncitizens where it would prosecute similarly situated citizens,141 the state’s option to not prosecute is therefore not a sufficient constitutional alternative to triggering unwanted immigration consequences.
V. Conclusion
In denying states the opportunity to opt out of the severe immigration consequences of their convictions, the federal government impresses the police, prosecutors, judges, and juries of nonconsenting states into its service. That impressment — historically recent but massive in scale — goes against the commandeering cases’ doctrinal analysis and flouts their spirit. The resulting system obscures accountability while leading federal, state, and local government actors to work around, not with, each other. Resolving these concerns necessitates neither radical innovation nor disruption; it simply requires restoring a mechanism for states to keep their convictions from triggering deportation.