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Published online by Cambridge University Press: 22 December 2022
For nearly 150 years, the Supreme Court has denounced jurisdictional ambiguities in immigration policy, regularly striking down state laws as unconstitutional intrusions on the federal government’s “broad, undoubted power.” Most scholarship on the historical evolution of US immigration policy has followed suit, rendering invisible the role of state governments and federalism in immigration policy during the crucial, transformative decades of the Gilded Age and the Progressive Era. This article redresses these silences by spotlighting the aggressive state policy activism and critical intergovernmental negotiations over how to control immigration and noncitizens from the 1870s to the 1920s. Focusing on two older, eastern seaboard states—Maryland and Virginia—and two newer, southwestern states—Arizona and New Mexico—these historical case studies show how subnational immigration initiatives were fueled by distinctive local and regional labor need and racial landscapes. This article also identifies and illuminates distinct forms of autonomous, interdependent, insistent, and validated activism by states in immigration federalism.
The authors would like to thank the anonymous reviewers for their constructive feedback and the National Endowment for the Humanities for a Collaborative grant that funded research for this article.
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9. The “big five” in immigration history are New York, Texas, California, Florida, and Illinois. We hope to be able to add to the historical record of other, less well-studied states, with the comparisons we offer here. As Colbern and Ramakrishnan note in Citizenship Reimagined, there is a need for additional in-depth historical studies of immigration in other states. Although they employ “a historical institutional approach” to study shifts from anti-immigrant legislation to immigrant rights in California (12–13, 18), they note they were “unable to conduct a similarly detailed, historical institutional analysis for all fifty states” (302). Clearly, an analysis of a state as crucial as California provides an important foundation, as do numerous works on comparable historical developments in New York. Yet equally important is to explore how immigration federalism has played out over time in other states, such as we do here.
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74. Interestingly, the Court specifically noted that it was not considering the question of conflict with treaties, a move providing greater latitude for states unrestrained by federal actions. Of note, the court also chose to rule based on equal protection not preemption alone. Truax v. Raich, 239 U.S. 33 (1915). This is a contrast to a federal court ruling 80 years later on Proposition 187, the California voter initiative to deny social services to the undocumented immigrants. In 1995, the courts “skirted the equal protection issue by resting its decision on preemption grounds alone.” Joshua Fox, “Challenging Proposition 187’s Constitutionality: League of United Latin American Citizens v Wilson,” New Mexico Law Review 27, no. 1 (1997): 247. The jurisprudence on immigration federalism and definitions of immigration regulation and alienage laws are variable and state autonomous activism is critical to the process of defining these legal terms in any moment.
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92. State arguments, lawsuits, and subsequent action on immigration beginning in the late 1980 onward frequently call for federal remedy or compensation for costs state officials see as having emerged from federal mistakes on immigration. States have sued the federal government for everything from the costs of incarceration of immigrants, to education of immigrants, to border costs. Similarly, many state actions that intrude on federal immigration powers such as Proposition 187 in California and Arizona’s 1070 were grounded in arguments about the necessity of state action due to the failure of federal policy and were often framed as a way to spur the federal government to act.
93. Mechem to H. O. Bursum, April 11, 1922, Gallup Strike, folder 220, MM-NMRA. In addition, Governor Mechem solicits the US district attorney to bring federal antitrust charges against two secret societies to which immigrant workers belonged, the Slavonica of Illinois and the Croation Benevolent Society, two groups the governor understood as central to the unrest. Mechem to George R. Craig, April 17, 1922, Gallup Strike, folder 220, MM-NMRA.
94. “Headquarters Military Police Camp Mechem, Gallup, New Mexico,” April 30, 1922, folder 221, MM-NMRA.
95. Arizona et al. v. United States, 567 U.S. 387 (2012).
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