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Immigration activists rally outside the U.S. Supreme Court in Washington. REUTERS/Joshua Roberts

Want to challenge Trump on immigration? Try a strategy from the antebellum South

Immigrant communities and their advocates are gearing up to challenge President-elect Donald Trump’s proposals for immigration policy.

The U.S. federal system structure of government may be their best defense.

Trump has said he will deport two to three million immigrants with criminal records. To find, apprehend, legally process, incarcerate and return that many people to their home countries would require the cooperation of local law enforcement. Only 5,700 immigration enforcement agents work the entire geographical U.S. By contrast, there are more than 20,000 border patrol agents policing a jurisdiction that is limited to 100 miles of the border.

Although states and localities cannot evade enforcement of federal laws, they can refuse to cooperate with federal authorities in carrying out mass deportation. The underlying premise is that the U.S. Constitution mandates power be divided between the national government and state and local governments. States would have constitutional grounds for resisting – the same grounds that allowed southern states to argue in favor of preserving slavery.

My research on the historical overlap between slavery and immigration policies shows how the federal system is a double-edged sword that can produce both liberal and conservative policy outcomes.

The possibilities of a federal system

Pro-immigrant forces are turning to the federal structure to resist Trump’s restrictive immigration proposals. Immediately after the election, mayors and other local officials across major U.S. cities vowed that their cities would remain “sanctuaries” for immigrants.

As several law professors recently wrote, states and localities can argue that local law enforcement’s work would be compromised if they were dragooned into helping carry out federal immigration laws. Forcing state police to enforce federal immigration laws could make communities less safe, the argument goes, if residents feel compelled to hide from or refuse to cooperate with police because of their immigration status.

As for Trump’s threats to withhold funding from cities failing to enforce immigration laws, the legal doctrine on his side is speculative at best. The law he thinks he has on his side is not clear about how and how much federal funding can be withheld to states and localities that don’t toe the line on federal policy.

The framers’ hopes

The framers of the U.S. Constitution believed that to safeguard individual liberty against government tyranny, government power and authority should be divided to create checks and balances. In addition to three branches of government sharing power, the Constitution also splits authority between the national government, state and local governments.

The 10th Amendment of the Constitution is the source of the states’ powers. It states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Traditionally, this division has meant that states control policies under its “police powers,” which include health, safety and morals. Examples include regulating gambling, liquor, prostitution and cigarettes. In turn, the federal government confined itself to what James Madison described in Federalist Papers Number 45 as “principally on external objects, as war, peace, negotiation, and foreign commerce.”

Family of African-American slaves on Smith’s Plantation Beaufort, South Carolina. Library of Congress

In the antebellum period, slave states used the autonomy allowed by the federal system to preserve slavery by arguing it was part of “states’ rights.” Later, during the civil rights era, southern states relied on the same arguments to justify racial segregation as part of the “southern way of life,” even though that belief contradicted federal law. Of the federal system, political scientist William Riker once noted, “Here it seems that federalism may have more to do with destroying freedom than with encouraging it.” Given its ignoble legacy on racial equality, the federal system earned a bad rap with those for racial equality.

However, the federal system can also produce liberal results because of the flexibility it permits across the 50 states. Supreme Court Justice Louis Brandeis wrote in 1932: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

That belief has led to progressive policies. In the Progressive Era, 1890 to 1920, it was the states that first passed laws to protect their workers’ well-being, including child labor laws. By 1919 every state had a law banning children under 14 from working, even as a similar federal law was struck down by the Supreme Court.

More recently, many states have legalized the use of medical marijuana. By contrast, the federal government continues to criminalized all uses of the drug, resulting in tough federal convictions.

Sometimes, states can succeed where the federal government cannot. Protecting immigrants may be the next example.

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