Colonial and State Immigration Policy and Immigration Federalism, 1700s-1892.

In 2010, the Department of Justice asserted in U.S. District Court and before the U.S. Courts of Appeals that the federal government has exclusive control to regulate immigration and therefore Arizona's controversial SB 1070 immigration control law was unconstitutional because it had been "preempted" by federal authority. That assertion of the division of labor between the national and sub-national government units on immigration policy needs to be empirically and doctrinally evaluated. In fact, for a century and a half before the federal government actively became involved in immigration policy, colonies and then states actively regulated that policy area. This paper explores the political and doctrinal reasons for the delayed federal intervention in this policy area. It argues that in the nineteenth century, the federal government simply lacked the administrative capacity to regulate immigration and that only competition among the states that impeded commercial interests and entreaties from the states themselves for federal financial assistance in the late 1880s paved the way for federal entry into immigration regulation. Moreover, our historical amnesia of this century and a half of sub-national immigration regulation distorts contemporary debates by making it appear as if federal power over immigration always was and that state and local regulation are anomalies. [ABSTRACT FROM AUTHOR]