The goal of this Article is to discuss the justiciability of issues arising under immigration federalism by examining the constitutionality of the REAL ID Act. Part I discusses states' authority over non-citizens and the history of "immigration federalism" jurisprudence. Part II explores key provisions of the REAL ID Act, the WHTI, and similar attempts by the federal government to deputize states to engage in citizenship-policing and immigration enforcement. It describes the acute social and economic segregation that the denial of driver's licenses to non-citizens engenders, and examines a number of theories that attempt to capture the impact of the current immigration federalism framework or prescribe alternate approaches. Part III analyzes previous legal challenges under the Equal Protection Clause involving similar measures, and the viability of potential challenges under the Tenth Amendment and international human rights laws. The Tenth Amendment discussion in particular elaborates on the "dual sovereignty" framework for federalism in the immigration context that the Supreme Court articulated in Printz v. United States, and questions the fate of future Congressional legislation that may be described as irrational, xenophobic, and untethered to political accountability.
Shirley Lin, States of Resistance: The REAL ID Act and the Limits of Federal Deputization of State Agencies in the Regulation of Non-Citizens, 12 N.Y.C. L. Rev. 329 (2009), https://digitalcommons.pace.edu/lawfaculty/1179/.
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