The system of federalism established by the United States Constitution was built upon the idea of governmental structural symmetry, which had not existed under the Articles of Confederation. When the Founding Fathers transformed the confederation into a federation at the Constitutional Convention in 1787, they saw the basis for future state structure as the maximum integration of its independent parts (Gagnon & Keil 2016). Today, federalism continues to serve as the instrument that balances the powers of the state and federal governments. This paper aims to provide a critical review of how federalism was designed and perceived by the Framers of the Constitution, and how it is currently practiced in the context of immigration policy during presidency of Donald J. Trump.
With questions abounding about the effects of immigration on the well-being of the nation, it is especially important to resolve the matter of illegal immigration, as well as the associated social problems of unemployment, substance abuse, and crime. To understand the role of federalism in these issues and trace the reactions of President Trump, this paper analyzes the academic evidence and provides recommendations for government policy of the U.S. in the future. While the issue of immigration is under the full authority of the federal government and the Rule of Naturalization, local authorities have the instruments to resist it. In case of Trump’s approach to immigration, one can argue that he tried to infringe on state sovereignty by his immigration-related executive orders.
To obtain pertinent information for this paper, the method of critical literature review is used: namely, the University’s database yielded articles discussing Trump’s policies and the laws that are intended to resolve the issue of immigration. Through the use of Emerald, Elsevier, and Google Books, several scholarly journals were researched directly to find specific information. The key words for the search included “Trump and immigration,” “federalism in the U.S.,” “ban for immigration,” and “federalism of the Framers.” Based on the common topics and controversies, the key themes were identified and then used to structure the paper. The sources included were published since 2015, thus ensuring their relevance and quality.
Federalism as Viewed by the Framers
The principle of discretionary oversight presupposed that states were the primary participants in federal relations, with citizens taking part in some cases. The key element of American federalism is the power of each individual state to determine its own political structure, including the policies whereby it influences the central government. The question of delineation of powers arises in every federal state, and the U.S. was no exception. Anticipating the problem of the divisibility of sovereignty, the Framers perceived the central government and the power of the subject states to exist both with each other and in each other (Gagnon & Keil 2016). The topic of federalism was central to the framing of a document to replace the Articles of Confederation, which was based on the authority of the states. In a confederation, the national government is the creation of the states, so they retained all sovereign powers except for a few specifically delegated to the national government (Somin 2018). The entity called the United States was viewed as something like a state league.
The question of the balance between the rights of individual states and the authority of the federal government became the most intensely debated topic of the Constitutional Convention. While James Madison and Alexander Hamilton pointed out the failure of states to ensure the safety and well-being of the people under the Articles of Confederation, Thomas Jefferson and other “anti-Federalists” declared state sovereignty to be indivisible. In their articles and appeals, American federalists substantiated the practicality of the new system and its effectiveness in ensuring the rights and freedoms of citizens (Gagnon & Keil 2016). The process of drafting and ratifying a new Constitution helped to resolve controversial issues and formulate the correct balance between the jurisdictions of individual states and the national government.
In the first 75 years after the ratification of the Constitution, the development of the U.S. political system was marked by constant constitutional and political conflict over the nature of American federalism. Shortly after the adoption of the Constitution, those who advocated for greater federal authority, such as John Marshall and George Washington, came together to form the Federalist Party. Meanwhile, Jefferson, James Monroe and other anti-Federalists coalesced into the Democratic-Republican Party, which continued to view the nation as more of a confederation in which all powers and sovereignty were concentrated at the state level (Gagnon & Keil 2016). Critics of the Constitution argued that a central government could not function effectively at the level of a state as large as a nation. They feared the consolidation of power in the national government and thought that the expansion of national power would result in tyranny and despotism.
The U.S. Constitution is not limited to establishing the exclusive powers of states and the government. In particular, the scope of overlapping federal and state authority is established, including lawmaking and law enforcement in the fields of civil rights, taxation, regulation of corporations, and ensuring general welfare (Somin 2018). While these areas are under the jurisdiction of both the federal and state governments (Gagnon & Keil 2016), there is not equal balance in their participation. In the case of any conflict between federal and state law, federal laws are recognized as having priority over the legislation of the states in accordance with the doctrine of the “supreme law of the land” established in the Constitution.
Today’s Federalism and Trump’s Approach to Restricting Immigration
Modern scholars continue to view federalism as the division of sovereignty between the federal and state governments. In their opinion, the U.S. Constitution framed a government in a manner similar to the existing state governments at the time, with legislative, executive, and judicial branches of government. It established limits on the powers of the authorities, with the central government and state governments sometimes coinciding and sometimes opposing each other, depending on the circumstances. This conflict is one of the features that characterize the uniqueness of the existing system: federal laws are passed on issues traditionally under the jurisdiction of local administrations, such as the fight against crime, fire safety, land use, education, and even marriage.
In the case of immigration, the origins of America’s multinational and multiracial population should be briefly identified. The entire modern multinational and polyethnic population has developed from people who either voluntarily emigrated from other countries or were forced to immigrate to the United States (i.e., African slaves). The indigenous population of North America did not take part in the establishment of the Unites States as a nation; rather, Indian tribes were deemed to be foreign entities, so the U.S. made treaties with them in a quasi-international relationship. Even today, Native American tribes occupy a special status compared to other Americans (Kuge 2020). While the inclusion of immigrants from various national and cultural identities gradually made the American population more diverse, certain ethnic communities can live quite separately from the mainline population. Since such groups had no historical ties with that territory, there was no practical interest or opportunity to create ethno-territorial formations.
Perhaps in reaction to the growing cultural diversity of the U.S. population, President Trump decided to limit the flow of immigrants into the country. In 2017, he promulgated a decree affecting the order of entry for citizens from seven countries with predominantly Islamic populations. For Iran, Syria, Sudan, Libya, Somalia, Yemen, and Iraq, his decree provided for a 90-day travel ban to the United States, as well as a 120-day ban on admitting refugees. During the presidency of Barack Obama, the quota for admitting refugees was 110 thousand persons annually, but Trump cut that number in half. By the time the decree was adopted, the yearly quota for the admission of refugees was almost fulfilled, with only a thousand people remaining to be admitted.
After the promulgation of the decree, 100 thousand visas that had already been issued were canceled. Trump denied entry to citizens of the aforementioned Muslim countries if they did not have a U.S. residence permit or diplomatic visa. Such a decision received criticism from the United Nations, human rights organizations, and public figures worldwide. The main argument against the presidential decree was that it violated the constitutional foundations of religious and national equality (Kuge 2020). The U.S. National Immigration Law Center (NILC) announced that it was suing President Trump and the secretary of the Department of Homeland Security, with the Council on American-Islamic Relations (CAIR) also intending to file suit.
As internal political struggles intensified, a New York federal court imposed a temporary ban on the expulsion of immigrants with valid U.S. visas from American airports. Even officials subordinate to Trump took the side of the opponents of the decree, with the White House instructing U.S. intelligence agencies to assess the measures taken by the head of state. As part of this work, the ministry prepared a report stating that citizenship is hardly a reliable indicator of potential terrorist activity, with the Department of Homeland Security calling the ban of Muslim immigrants ineffective in curbing terrorism.
Trump and Sanctuary Cities
Sanctuary cities limit their cooperation with federal immigration law in order to protect low-priority immigrants from deportation. In particular, a sanctuary city can be a state, county, or a separate municipality that does not transfer data about a person’s immigration status to law enforcement or federal authorities (Lasch et al. 2018). Trump has repeatedly threatened to end federal funding for those administrative units that provide shelter to illegal migrants. The Trump administration considered placing them in such cities due to Democrats’ refusal to change immigration laws, which Trump saw as being dangerous laws that threatened the nation’s citizens, politics, and economy (Miroff & Barrett 2020).
Due to the decentralized structure of the U.S. system of government, a coordinated immigration policy is difficult to pursue. Currently, the federal government has to rely on the voluntary assistance of non-subordinate authorities, who do not always consider it necessary to act in accordance with the will of the center (Reich, 2018). More than 200 cities and districts in the country openly sabotage the work of the Immigration and Customs Enforcement, or ICE (Kuge 2020). In all the sanctuary cities, which include Washington, Boston, Miami, Chicago, New York, and Philadelphia, the internal instructions of the city police and municipal services prohibit them from cooperating with ICE in the deportation of illegal immigrants who have not committed serious criminal offenses.
As part of a proposed solution to the immigration problem, the Trump administration explored the option of sending undocumented illegal immigrants to the so-called cities of refuge. At first, the White House denied that the option was on the list, but President Trump would later say that he had every right to use the option of sending illegal immigrants detained at the border exclusively to such cities (Miroff & Barrett 2020). In the largest sanctuary cities, such as Los Angeles and New York, the supporters of the Democratic Party are strong. As reported by the Washington Post, the White House twice suggested that migration authorities send illegal immigrants there as revenge on the political opponents of Trump and the Republican Party (Miroff & Barrett 2020). According to media reports, however, the Department of Homeland Security had previously pointed out the illegality and counter-productiveness of these measures.
President Trump wanted to tighten the immigration policy if were to be re-elected for a second term. Four ideas were considered, including limiting the period for granting asylum, closing the sanctuary cities, expanding the ban on the entry of citizens from other countries, and extending the requirements for recipients of work visas (Reich 2018). As an adviser to the U.S. president explained in an interview, Trump aimed to raise the standard of entry to the United States (Reich 2018). The argument was that in many cases, regulatory reform is needed to address issues of illegal migration and restore a semblance of sanity in our immigration programs.
In 2020, Trump signed a document that temporarily restricted the entry of immigrants on a number of visas, including those for highly skilled workers. The administration argued that this measure would help preserve jobs for unemployed American citizens. The U.S. Citizenship and Immigration Service (CIS) announced a 20% increase in immigration fees, which was attributed to due diligence of applicants and the increased costs of preventing immigration fraud (Miroff & Barrett 2020; Reich 2018). Thus, the Trump administration implemented significant measures to reduce the number of immigrants to the United States.
The members of a federation are not states in the proper sense of the word in that they do not have sovereignty, although some U.S. states have formally proclaimed sovereignty. Instead, the subjects of the federation are either completely deprived of the right to take part in international relations, or their competence in forming foreign policy is severely limited and instead carried out under the control of the federal government. As a rule, state sovereignty comprises the issues within the competence of the subjects of the federation and does not affect the sphere of political relations outside the states. In the United States, modern federalism performs two important functions: the decentralization of powers by means of vertical division and the integration of territorial communities (Miroff & Barrett 2020). In addition, great importance is attached to integration ties and communication between the federal and regional powers.
For the last two decades, the sphere of immigration relations has been a convenient object for unilateral actions of the executive power, including regulations for border control and the naturalization of immigrants. The harsh language of such laws points to important changes taking place in the identity of America, which has developed as a nation of immigrants and previously used the human capital produced in other countries. The U.S. is increasingly beginning to perceive the world around it as hostile, and this attitude extends beyond its nearest neighbors. To ensure that unemployed Americans would be first in line for jobs as the economy grows, President Trump suspended immigration to the United States from certain countries. This initiative caught many by surprise and caused a wave of outrage among Democrats and organizations that advocate for the rights of immigrants.
Although the central government is defined as the kay immigration enforcement mechanism, local authorities can resist the implementation of federal laws regarding the issue of immigration. According to Article I, Section 8, the Congress has the power to institute a uniform rule of naturalization, which is obligatory for the states to follow. Namely, Article II, Section 3 states that the executive branch must ensure that the laws are properly introduced in practice. Nevertheless, states can flex their tights, as clarified by the 10th Amendment (Rodriguez, 2017). It is implied that while establishing a law, the federal government should anticipate the issues that may cause resistance from the states, which is a part of intergovernmental relationships. The dynamics of the immigration politics during Trump’s presidency was not marked by accountability checks. Despite the efforts of California and other sanctuary cities to provide the arguments against Trump’s agenda, little attention was paid to their resistance (Pham & Van, 2019). Since a manageable equilibrium was not attempted to be found from the ex-president, it is possible to claim that he was infringing on state sovereignty through his executive orders.
Speaking of federalism in terms of immigration laws, it is useful to refer to the decision of courts. For example, in In Arizona v. United States (2012), the opinion of the Supreme Court regarding SB 1070 was identified for the last 30 years (Rodriguez, 2017). The issue was that the state law wanted to extend local law enforcement powers on immigration, and the federal government intended to resist this initiative. The question of whether the proposed law usurps the authority of the federal government or not was decided by the Court in favor of Arizona. The judges agreed that Sections 3, 5(C), and 6 of S. B. 1070 are under the federal law, but it does not include requirements on investigating an immigration status (Rodriguez, 2017). Therefore, the decision ruled that Arizona can investigate a person’s immigration status, but it cannot detail him or her for a long time. This case significantly reduced the uncertainty regarding immigration, supporting federalism and claiming that even though federal authority prevails, the states can be flexible and counteracting.
Furthermore, federal-local polarization became a specific characteristic of federalism debates in terms of immigration. In the Executive Order 13768, Trump declared that sanctuary jurisdictions that reject complying with the federal immigration enforcement would not receive grants for the exception of those given for law enforcement purposes (Pierce & Selee, 2017). In County of Santa Clara v. Trump and City and County of San Francisco v. Trump, the Court found that the above order is unconstitutional as it violates the 10th Amendment and the separation of powers doctrine (Rodriguez, 2017). It should be stressed that these decisions show that Trump tried to violate the constitutional principles, but the counties practiced their power to not only follow but also review and oppose the executive orders.
The Immigration and Customs Enforcement introduced the practice of arresting immigrants in sanctuary cities’ courthouses, referring to the Directive Number 11072.1, Civil Immigration Enforcement Actions inside Courthouses (Rodriguez, 2017). Their actions were supported by claiming that law enforcement agents can routinely engage in such arrest activities across the country. On the contrary, Eric Gonzalez, the Brooklyn District Attorney, and the state of New York filed suit against the ICE, stating that it violates the Immigration and Nationality Act of 1952 (INA) and the Administrative Procedure Act (APA), according to which arrests in courthouses were against the common low practice (Pham & Van, 2019). In Gonzalez v. ICE, the court decided the process court cannot be appropriate if third parties interrupt it and arrest persons for non-related civil violations. It was also stated that one of the consequences of these arrests is that immigrants are afraid to participate in legal proceedings, including domestic violence and other family problems (Pham & Van, 2019). Most importantly, this case confirms another attempt of the ex-president to disregard the local authority views and actions regarding immigrants.
In the view of the above court decisions, it becomes evident that both local and state legal systems impact the immigration bureaucracy by means of charging the solutions of prosecutors. The direction of immigration federalism is identified by the intergovernmental dynamics, which was disrupted in case of Trump. The set of orders and measures to reduce the powers of local states was initiated, which, however, gave an impetus for the development of greater debates on the nature and expected effect of federalism in the U.S. The relationships between the central government and the states with sanctuary cities became tense and controversial, which means that the question of immigrants remains critical.
Despite the fact that federalism was built on the principle of equality of subjects, some researchers now see it as an asymmetric arrangement (Somin 2018). The arguments of those who still believe in the symmetry of federalism proceed from the postulates that are rooted in the Constitution. Focusing on the fact that President Trump strengthened the laws that manage the entry of immigrants into the country, we see that he unintentionally improved the judicial protection of the states’ autonomy. In other words, federalism became great again as a number of court decisions in favor of sanctuary cities limited federal authority.
The decentralization of power is a mandatory requirement for the content of relations that make up the concept of federalism, with the degree of decentralization determined by specific historical conditions. Although the content of federal ties can change so much that the term denoting the concept will need to be adjusted, the essence of federalism is not limited to the mechanical distribution of jurisdictions between the federal center and regional authorities, or to the building of relations on the basis of such delineation of jurisdictions and powers. The true meaning of federalism lies in the fact that the mechanism of ensuring civil freedom and self-government at all levels of the exercise of power works to create a system of vertical separation of power and interaction and a mutual balance of all bodies of power and administration functions.
Assessing the development of American federalism in recent years, one should also emphasize that its role is similar to the well-known system of checks and balances. Federalism works as an effective instrument in the restraint of powers between the center, subjects, and local authorities, as well as in its ability to self-adjust (Conway & McFarland 2019). It is especially important during emerging conflicts between different levels of government that find political and legal resolution at an early stage of development before they reach breaking point. This role characterizes a qualitatively new level in the development of federal relations in American society.
Even before Donald Trump’s victory in the 2016 presidential election, confidence in the federal government had been eroding for quite some time. While Barack Obama sometimes had a high approval rating, only 19% of Americans believed the federal government was doing the right thing during his eight years in office (Conway & McFarland 2019). Given the traditional Republican values of members of the Trump administration, we can expect even more federal government programs (with the exception of defense) to go under the knife. Cuts in health, education, training, and environmental spending, combined with significant regressive cuts in personal and corporate taxes, will only serve to further enrich the elite at the expense of programs that now benefit most households.
While funding for such programs would have almost surely been slashed under a second Trump term, the serious social and economic problems that led to their establishment will not disappear. Responsibility for them will now fall on the shoulders of local authorities, who will have to look for innovative ways to solve them. The antidote to Trumpism is progressive federalism, the achievement of progressive political goals through the use of significant powers delegated to regional authorities. This provision is remarkable from the perspective of the relations between the executive and legislative branches. In fact, the Trump administration argued that order in the realm of immigration could be achieved without a new comprehensive immigration reform, instead relying solely on the repressive law enforcement apparatus, including the border service (Reich 2018). Instructed to conclude agreements with federal authorities, state and local governments were ordered to follow federal law when detaining, arresting, and investigating illegal immigrants.
All in all, Trump’s time in office has radically changed the tone of public debate over the issue of American immigration. There was a complete break with the traditional non-partisan consensus of the leadership of the two main political parties, which regarded immigration as a factor of net positive contribution to the social and economic development of America (Reich 2018). The White House began to view all immigrants—both legal and illegal—as threats to the national and economic security of the U.S.
The Trump administration’s ongoing attempt to aggressively overhaul the immigration system is not only an offense against the separation of powers and a clear overstretch by the executive branch, but it is also anti-American and immoral. Based on the analysis carried out, it can be stated that the implementation of Trump’s immigration policy is part of his overall strategy aimed at realizing American interests and ensuring advantages for the United States. He has curtailed the influx of refugees and visitors from Muslim countries, questioned the conditions of stay in the country of immigrant children brought to America, and taken draconian measures against illegal immigrants. Despite his efforts, however, millions of legal and illegal immigrants already living in the U.S. are producing children who are born full U.S. citizens, inevitably affecting the American political and economic landscape.
Recommendations for the Future of the United States
To function successfully, the U.S. federal system should find the right balance between cooperation and competition between the central government and the federated units. This presupposes an appropriate combination of separate structures with functional cooperation relations, a culture of mutual recognition of laws in administrative and judicial practice, and an openness of the process of mutual trade. A certain amount of both two-tier federalism and federalism of cooperation is required to allow governments to work together to achieve common goals. At the same time, if each government does not retain the right to make decisions and the freedom to say “No,” this cooperation will only be a cover for central government violence.
Regarding the issue of immigration in the context of federalism, a series of new policies and laws is needed to clarify intergovernmental relations. It is critical to identify the jurisdictions of federal and state power in order to better understand their interactions. The sanctuary cities want to protect their people, and the central government also aims to provide safety and security to the population. This dilemma has many sides that can be considered from different perspectives. For example, a compromise between the opposing powers can result in the formulation of the rules of border states. In general, the implementation of more positive immigration laws should be preceded by in-depth research and analysis.
To protect America from the tyranny a central government and ensure that each state had certain powers to decide their own issues and influence the nation’s decisions, the Framers implemented the structure of federalism into the U.S. Constitution. However, the controversies about the interpretation of federal powers that were existent from the beginning continue to abound today. They remain a central element of modern political discussion, particularly in relation to President Trump’s policies on immigration and the reactions from sanctuary cities and federal courts. His push to strengthen the laws on entry to the U.S. was met with opposition from sanctuary cities, where immigrants can live without documents. The restraining power of the federal courts and states’ opinions shows that federalism still serves as the balancing instrument to prevent tyranny and ensure that the people of the U.S. are protected by the law.
Conway III, L. G., & McFarland, J. D. (2019). Do right-wing and left-wing authoritarianism predict election outcomes? Support for Obama and Trump across two United States presidential elections. Personality and Individual Differences, 138, 84-87.
Gagnon, A. G., & Keil, S. (2016). Understanding federalism and federation. Routledge.
Kuge, J. (2020). Countering illiberal geographies through local policy? The political effects of sanctuary cities. Territory, Politics, Governance, 8(1), 43-59.
Lasch, C. N., Chan, R. L., Eagly, I. V., Haynes, D. F., Lai, A., McCormick, E. M., & Stumpf, J. P. (2018). Understanding Sanctuary Cities. Boston College Law Review, 59, 1703-1778.
Miroff, N., & Barrett, D. (2020). ICE preparing targeted arrests in ‘sanctuary cities,’ amplifying president’s campaign theme. The Washington Post.
Pham, H., & Van, P. H. (2019). Subfederal immigration regulation and the Trump effect. he New York University Law Review, 94, 125-170.
Pierce, S., & Selee, A. (2017). Immigration under Trump: A review of policy shifts in the year since the election. Migration Policy Institute. Web.
Reich, G. (2018). Hitting a wall? The Trump Administration meets immigration federalism. Publius: The Journal of Federalism, 48(3), 372-395.
Rodriguez, C. (2017). Enforcement, integration, and the future of immigration federalism. Journal on Migration and Human Security, 5(2), 509-540.
Somin, I. (2018). Making federalism great again: How the Trump Administration’s attack on sanctuary cities unintentionally strengthened judicial protection for state autonomy. Texas Law Review, 97, 1247-1294.