Immigration Federalism and the Promise of State Constitutions

Authors

• Joanne Gottesman, Rutgers Law School

First Page

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Abstract

This Article explores state constitutions’ promises and pitfalls for immigrant rights advocacy. This is a particularly urgent endeavor, given the anti-immigrant measures of President Trump’s second term and a U.S. Supreme Court that is willing to reverse longstanding precedent. Even cases like Plyler v. Doe, with its guarantee of free public education to undocumented children, could be vulnerable. While U.S. Supreme Court opinions protecting immigrant rights are the gold standard because they apply nationwide, state courts and state constitutions provide critical alternative avenues for relief that should not be overlooked.

This Article considers some state constitutional provisions that may help expand noncitizens’ rights and thwart anti-immigrant measures. It examines state constitutional provisions that have no analog in the federal Constitution in areas such as equal protection, public education, public welfare, and workers’ rights, as well as some criminal procedure provisions that are analogous to the federal Constitution. It concludes that advocates should embrace state constitutional arguments and look to provisions already embedded in state constitutions, even if they are not explicitly pro-immigrant, particularly since explicitly pro-immigrant constitutional amendments may not be politically or practically feasible in the short term.

Challenging state anti-immigrant measures based only on violations of the U.S. Constitution is a missed opportunity for advocates. In addition, examining only the role of state and local statutes and regulations is a missed opportunity for scholars of immigration federalism because state constitutions also play an important part in the United States’ complex federalist system.

Recommended Citation

Joanne Gottesman, Immigration Federalism and the Promise of State Constitutions, 30 Lewis & Clark L. Rev. 1 (2026).
Available at: https://lawcommons.lclark.edu/lclr/vol30/iss1/2