American cities are creatures of their states, with states both granting and limiting the power of their cities. This relationship is characterized by how cooperative or competitive states are with cities in their legislation. Despite the recent attention given to state preemption of local laws, this is not a new phenomenon. Part of the confusion surrounding preemption is that there is no shared definition or understanding of its forms. The purpose of this article is to begin to create that shared conception. In doing so, we define preemption according to its historic origins as the use of coercive methods to substitute state priorities for local policymaking. We argue modern state preemption of local laws can be divided into four phases, each with their own policies and mechanisms. We show how preemption has changed over time, shifting the functional, legal, and political relationship between states and their cities. Together, these phases help assist policymakers and administrators in understanding the nature of state preemption, and thus how to create and implement local policies in an environment where the distribution of power between governments is competitive and changing.

/pdf/state-preemption-of-local-laws-origins-and-modern-trends-2gaj6squ75.pdf

State Preemption of Local Laws: Origins and Modern Trends

Part of the University of California, Davis Law Review’s 2016 symposium, Disjointed Regulation: State Efforts to Legalize Marijuana, this article injects race into the discussion of the state trend to legalize marijuana by detailing the salience of race in the last 100-year life cycle of U.S. marijuana prohibition. Race has driven marijuana regulation from the initial criminalization by the states prompted by derogatory racial stereotypes, through the ongoing racialized enforcement of marijuana and other drugs in the criminal justice system. The article adds how, despite the legalization of recreational (and medical) marijuana in some states, the fruits of legalization thus far are enjoyed primarily by white entrepreneurs who dominate the industry, while racial minorities remain disproportionately vulnerable to criminal enforcement in the vestiges of enforcement that survive legalization - consumption by youths or in public places, driving while under the influence, and the ongoing black market given high taxation rates and infrastructure costs of legal sales.

The Colors of Cannabis: Race and Marijuana

For more than two decades, criminal procedure scholars have debated what role, if any, race should play in the context of policing. Although a significant part of this debate has focused on racial profiling, or the practice of employing race as basis for suspicion, criminal procedure scholars have paid little attention to the fact that the U.S. Supreme Court has sanctioned this practice in a number of cases at the intersection of immigration law and criminal procedure. Notwithstanding that these cases raise similar questions to those at the heart of legal and policy debates about racial profiling, they are largely overlooked in the criminal procedure scholarship on race and policing. We refer to these cases as the undocumented cases. While there are a number of doctrinal and conceptual reasons that explain their marginalization, none of these reasons are satisfying given the importance of the undocumented cases to debates about race, racial profiling, and the Fourth Amendment. The undocumented cases import a pernicious aspect of immigration exceptionalism into Fourth Amendment doctrine - namely, that the government can legitimately employ race when it is enforcing immigration laws. In so doing, the cases constitutionalize racial profiling against Latinos and unduly expand governmental power and discretion beyond the borders of immigration enforcement. This weakens the Fourth Amendment and enables racial profiling in the context of ordinary police investigations.

Undocumented Criminal Procedure

The increasing focus of federal immigration enforcement on persons accused of crimes has hastened the creation of local criminal justice policies that govern the treatment of immigrants. In this Article, I report my findings from public records requests sent to prosecutor offices, city police departments, and county sheriffs in four large counties in California: Alameda, Los Angeles, Santa Clara, and Ventura. I analyze the text of three types of written criminal justice policies that emerged in every county: (1) police policies that prohibit inquiry into immigration violations during routine policing; (2) prosecutor policies that consider deportation penalties in negotiating pleas for low-level offenders; and (3) sheriff policies that reject certain federal requests to detain immigrants in their jails for deportation purposes. All of these policies function to protect at least some immigrants who come into contact with the criminal justice system from possible deportation. Yet, close analysis of these policies — which I refer to as “immigrant protective policies” — also reveals key differences in how these protections are structured and, hence, in which immigrants are covered by these policies. In short, some policies are more protective than others.This Article argues that the protective gaps in these local policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each of these justifications, while important, has supplied only a partial framework for formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities. To help guide the development of next-generation protective policies, which will be particularly crucial to pro-immigrant states and localities during the administration of President-elect Donald Trump, this Article explores an alternative justification for immigrant protective policies — immigrant equality. Immigrant equality seeks to insulate noncitizens from harsher forms of punishment, racial and ethnic profiling, and other substantive and procedural distortions that immigration enforcement imposes on criminal cases involving noncitizens. To illustrate how adherence to a norm of immigrant equality would further refine and shape next-generation protective policies, this Article applies the approach to current criminal justice issues facing localities around the country.

Immigrant Protective Policies in Criminal Justice

.....................................................................................................ii Acknowledgments..........................................................................................iii Table of

/pdf/barriers-of-being-undocumented-mexican-women-u-s-immigration-5fzb8c2i4z.pdf

Barriers of Being Undocumented: Mexican Women, U.S. Immigration Law, and the Reporting of Sexual Assault and Abuse

This Article† suggests that the replacement of Secure Communities with the Priority Enforcement Program (PEP) did not, and would not have ameliorated the problem of disparate criminal immigration deportation of Latina/o noncitizens. It explores the implications of de-coupling criminal and immigration enforcement and gives theoretical consideration to the value of equality principles in criminal immigration enforcement. 
One of Secure Communities’ many critiques was that it resulted in disproportionate removal of minor offenders — minor offenders who were disproportionately Latina/o noncitizens. PEP created procedural fixes, but the latent, deeper substantive problems of Secure Communities, its predecessor remained. Intractable racial disparity persisted within criminal immigration policing, in spite of PEP’s changes. PEP’s failure in addressing this problem in fact shed light on the deeper, more fundamental problem of criminal-immigration enforcement itself. In a time where race-based “stop and frisk” policing may be resurrected, grappling with the failures of the Obama Administration’s changes, namely PEP, illustrate the need for consideration of systemic change. 
This Article helps initiate the next generation of criminal immigration enforcement discussion by considering whether PEP’s failure necessitates an equality principles analysis that moves from procedural to deeper, more systemic, substantive considerations. Rather than confining discussion to narrow questions such as preemption, equality principles reach the roots of racially-biased criminal immigration policing. This deeper understanding allows better crafting of methods to prevent and counteract such practices.

/pdf/the-natural-persistence-of-racial-disparities-in-crime-based-1w64fh7y6q.pdf

The Natural Persistence of Racial Disparities in Crime-Based Removals

This paper asserts that state and local marijuana reforms that relax criminal penalties should, but will likely not, benefit Latino/a noncitizens. Because of the intricate relationship between criminal and immigration enforcement, state and local police engagement in racial profiling will not only fail to be eliminated by state-level marijuana reforms but may be exacerbated. As a result, in spite of marijuana law reforms intended to lessen overly punitive penalties stemming from minor marijuana conduct, noncitizen Latino/as will continue to be disproportionately criminally policed and deported. Scholarly literature addressing the intersection of criminal and immigration law has considered ways in which racial profiling in criminal law enforcement infects the immigration removal process. However, the literature has yet to explore the way in which sub-federal drug law reforms, and specifically, recent marijuana law reforms, will fall short for noncitizen Latino/as because of the way in which racial profiling in criminal law enforcement infects the immigration removal process. After decades of excessive, punitive, and ineffective policies, particularly in the area of drug law enforcement, states have initiated reforms, including marijuana decriminalization. At the same time that decriminalization measures are being implemented, in the field of immigration law, resources for apprehension, detention and deportation have skyrocketed, with a focus on “criminal aliens.” The criminal-immigration removal system has resulted in local and state law enforcement agents playing a critical, and problematic role in the detection, apprehension, and removal of “criminal aliens.” The plight of noncitizens deported or found inadmissible based on marijuana-related conduct highlights a deeper, systemic problem. Not only do extremely harsh immigration consequences serve as a double-penalty for potentially minor marijuana offenses, particularly in light of criminal law reforms, but enforcement of remaining marijuana laws will likely fall disproportionately on Latina/o noncitizens. Over ninety percent of deportations arising out of criminal law enforcement are to Central American and Mexico, yet Mexican and Central American immigrants make up less than half of the United States immigrant population. While decriminalization of marijuana may be more than a symbolic move away from the failed “tough on crime” policies of the past, it not only fails to take into consideration the impact of marijuana laws on noncitizens but also may exacerbate the racially biased aspects of drug law enforcement on noncitizens, particularly Latinos. This Article discusses the ways in which criminal-immigration law enforcement has impacted noncitizens, primarily Latino/as, to demonstrate why sub-federal marijuana reforms will fail to alleviate racially disparate outcomes, perpetually leaving Latino/a noncitizens in the shadows.

What (and Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens

In December 2014 the Obama Administration acknowledged the serious critiques of Secure Communities and replaced it with the Priority Enforcement Program (PEP). The United States Department of Homeland Security’s Secure Communities program had been subject to extensive and prolonged critique, and quantitative data suggested that it did not deter crime in spite of identifying deportable individuals, nor did it primarily result in deportation of dangerous or serious criminals.1 Tangible resistance to Secure Communities manifested in the form of “sanctuary city” policies and, more recently, sheriffs’ refusal to detain individuals otherwise subject to Immigration and Customs Enforcement (ICE) detainers.2 California is one of two states that

/pdf/the-role-of-equality-principles-in-preemption-analysis-of-4zxp0nllh7.pdf

The Role of Equality Principles in Preemption Analysis of Sub-federal Immigration Laws: The California TRUST Act

Secure Communities, and now the Obama Administration’s Priority Enforcement Program, incentivize local law enforcement officers to potentially misuse their discretion in enforcement of criminal law to identify those they suspect of being unauthorized migrants. TRUST Acts evolved in part as an attempt to curtail the possibility of such abuses of discretion by limiting local law enforcement’s ability to detain individuals beyond their original criminal incarceration pursuant to Immigration and Customs Enforcement hold requests. The question of whether federal immigration law preempts state and local legislation related to immigration law has primarily focused on anti-immigrant measures. In this article however, I address preemption of immigrant integrative sub-federal immigration laws like California’s TRUST Act, which may decrease the harms caused by potentially racially imbued discretionary sub-federal policing. Specifically, I contend that federal immigration law does not preempt TRUST Acts, particularly when assessed in light of equality principles. With little likelihood of comprehensive federal immigration reform, sub-federal entities will likely continue to create measures relating to immigration law. It may be possible that integrative ones have a stronger basis in the law than those that are anti-immigrant.

The Role of Equality Principles in Preemption Analysis of Sub-Federal Immigration Laws: The California Trust Act

In recent years, the judicial branch has given less deference to Congress when constitutional rights and protections are in question, moving towards the potential constitutional mainstreaming of immigration law. However, the Jennings v. Rodriquez Court failed to seize this opportunity, at a pertinent time. The Court could have continued the move away from the plenary power doctrine and acted as a check on the political and executive branches by further bringing constitutional norms into immigration law. Particularly because of the history of systemic ethnic and racial bias in immigration law, the Jennings v. Rodriguez Court’s validation of the constitutional due process question would have had indirect ramifications beyond the immediate due process issue. Racialized noncitizens of color, particularly Mexican and Central American refugees, are incarcerated for attempting to migrate, increasingly, and with deterrent and punitive intent, since the initial drafting of this article. 
The first section of this article will set forth the doctrinal context concerning detention of asylum seekers arriving at a United States port of entry. The second section will explore the Court’s substantive due process jurisprudence pertaining to immigration detention, including discussion of the Jennings v. Rodriguez litigation. The third section will continue the examination of preventative civil immigration detention, with a focus on one district court case suggesting a limit on such detentions. The fourth section will broaden the discussion to non-immigration civil and criminal preventative detention to present due process limitations in those contexts to highlight the potential due process analysis if civil immigration detention due process questions were brought within the constitutional mainstream. 
The fifth section will transition to the historical mistreatment in immigration law, of Central American and Mexican immigrants to contextualize their modern-day extra-constitutional incarceration as asylum seekers. The fifth section will also touch on the role of the plenary power doctrine in continuing to enable implicit racial and ethnic bias in immigration law to better understand the role the doctrine continues to play in adversely racializing particular groups of immigrants. Finally, the last section proposes a combined methodology of disaggregation and application of rule of law principles to provide a path to move immigration law towards the constitutional mainstream.

Carrie L. Rosenbaum

Papers

The Natural Persistence of Racial Disparities in Crime-Based Removals

What (and Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens

The Role of Equality Principles in Preemption Analysis of Sub-federal Immigration Laws: The California TRUST Act

The Role of Equality Principles in Preemption Analysis of Sub-Federal Immigration Laws: The California Trust Act

Immigration Law's Due Process Deficit and the Persistence of Plenary Power