Congress has traditionally held exclusive authority when it comes to national immigration legislation. But over the last decade, influenced by factors both national and local, an increasing number of states have enacted their own immigration laws, seeking to regulate issues related to education, enforcement, and employment within their states. Two pieces of federal immigration legislation, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 helped this trend by authorizing states to engage in limited immigration enforcement and to extend or limit public benefits to noncitizens in their states, including undocumented immigrants.
This trend of additional legislating at the state level also stems from state government efforts to manage immigration within their states. For instance, immigration-control measures from the 1990s, especially California’s Proposition 187, served as the forerunner for laws such as Arizona’s Senate Bill (S.B.) 1070 in 2010 and Texas’s S.B. 4 in 2014, both of which sought to control illegal immigration in those states. More recently, many states, including California, have gone in the opposite direction, enacting legislation more favorable to immigrants to counter federal immigration enforcement efforts. Finally, political, social, and institutional factors within states as well as debates over immigration and immigration policy at the national level have contributed to this legislative activity, especially in the wake of Congress’s failure to pass comprehensive immigration reform at the national level.
A review of a database and reports of state immigration laws enacted since 2005 and compiled by the National Conference of State Legislatures (NCSL) shows several trends that shed light on the increasing prevalence of state immigration legislation. First, the number of states that enacted immigration laws expanded from 25 in 2005 to 46 in 2007 and 49 in 2017, as more state legislatures weighed in on immigration policy issues. Second, the Bipartisan Policy Center’s review found that state legislatures enacted a total of 2,100 immigration-related laws between 2005 and 2017, with identification and driver’s licenses, budgets, and enforcement emerging as the top three categories of laws enacted during this period. Some states were more active than others, however. California, Utah, and Virginia enacted the most immigration laws between 2005 and 2017, accounting for 38 percent of all state immigration laws enacted during this time.
BPC also found that partisanship in state government can shape the content of these laws, albeit with major caveats. Democratic- and Republican led governments have enacted different sets of laws—especially ones related to public benefits and driver’s licenses—that take opposite approaches to immigrants in their states, reflecting the influence of local and external actors as well as shifts in national party platforms. However, demand for workers in key state job sectors, the need to regulate important state industries, and federal legislation can lead both Democratic and Republican-led governments to enact similar laws in these areas. Regional disparities within the parties can also limit the influence of strict partisanship at the state level: Southeastern Democratic-led and Mountain State Republican-led governments have enacted laws that align more with their political counterparts than their national party platforms. In short, local economic factors and regionalism can limit the extent to which partisanship pushes Democratic- and Republican-led governments to enact diverging immigration laws.
This state-level research could have broader implications for national immigration policy and politics. Given that both parties have found some key areas of consensus around immigration at the state level, national lawmakers could use these points of agreement to guide the development of broader immigration reform that could overcome rigid partisanship. Regional differences in both parties can also play a mediating role, with conservative Democrats in the South and moderate Mountain State Republicans sharing similar policy prescriptions. Although the national debate over immigration policy will continue to exert partisan influence on this issue, the existing consensus at the state level suggests some possible avenues for breaking partisan gridlock in Washington. Conversely, deepening partisanship at the state level and enactment of state laws that attempt to push the national immigration debate in one direction or the other could further weaken efforts at bipartisanship at both levels of government.