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Why New York’s proposal to grant state citizenship makes perfect sense

States don't need Congress to pass immigration reforms

June 25, 2014 3:30AM ET

New York State is looking to create a path to citizenship: its own. A bill recently introduced by the state Senate in Albany would allow residents to apply for citizenship in New York even if they aren’t U.S. citizens or, for that matter, even if they aren’t living legally in the United States.

The measure — the New York Is Home Act — would decouple state and national citizenship. Those with New York citizenship would enjoy legal equality under state law for purposes of social services, human rights protections, professional licenses, jury service, voting and even holding public office. All individuals who have resided in New York for at least three years would be eligible to apply, as long as they have paid all required state taxes and are willing to abide by state laws and uphold the state constitution. On some future July 4, we may witness naturalization ceremonies in which immigrants pledge allegiance to the state of New York rather than the United States.

The bill marks a radical break from prevailing conceptions of citizenship and federalism. But it would be a natural solution for immigrant-friendly states that have been extending benefits piecemeal to newcomers who don’t have (and may be ineligible for) U.S. citizenship. That reflects the fact that these newcomers — legal or not under federal immigration laws — are members of the local community. Even though immediate prospects for the bill’s enactment seem slim, it sets up a new conceptual approach in relating immigrants to the communities in which they live. It also highlights how states can be friendly to immigrants. For all the attention focused on Arizona’s anti-immigrant SB 1070 and other hostile state and local measures, more states and cities are rolling out their welcome mats. 

Decoupling state and federal citizenship would reflect communal solidarity, and that’s ultimately what citizenship anywhere is all about.

Many subfederal jurisdictions are already affording substantial rights and benefits to noncitizens. In 10 states, undocumented immigrants are eligible for driver’s licenses. At least 18 states have extended in-state college tuition rates to undocumented high-school graduates. Even as the 1996 federal welfare reform act allowed states to discriminate against legal immigrants, most opted not to. Citizen taxpayers in those states are sharing their tax dollars with noncitizen fellow residents. That shows a sense of high level of mutual obligation.

Several cities, including San Francisco, Washington and New Haven, Connecticut, have adopted city identification cards for which all residents are eligible, undocumented aliens included. It’s a kind of local passport for purposes of gaining access to municipal services and facilitating interaction with law enforcement. (In Oakland, California, the ID doubles as a debit card, thus granting its holders consumer citizenship as well.)  Some localities allow noncitizen voting in local elections. Were it not for Gov. Jerry Brown’s 2013 veto, California would have made noncitizens eligible for jury service.

If non-Americans are being treated as state and local citizens in practice, why not make it in name as well? Even if newcomers are enjoying benefits already, citizenship puts a name to it. Decoupled state citizenship would reflect communal solidarity, and that’s ultimately what citizenship anywhere is all about. Extending this status to immigrant residents would have expressive value for the community, and for recipients, it would be a badge of honor, perfecting their full membership in the subnational community.

Local attachment

The New York program would be not only for undocumented immigrants. Many longtime legal immigrants are attached to their local communities but not so enamored of the United States. That’s perhaps especially true of New Yorkers. Some foreigners are devoted to New York but ambivalent about the U.S. The New York Is Home Act gives them a vehicle for formalizing the local attachment.

The federal government, meanwhile, would have no legal basis for complaint. New York’s citizenship would be independent in theory and practice from U.S. citizenship. Unlike so-called sanctuary laws, which aim to protect undocumented immigrants from federal immigration law enforcement, the New York measure would not undermine federal law.

Nor would the proposal run afoul of the U.S. Constitution. Under the 14th Amendment, citizens of the United States are automatically citizens of the state in which they reside. But the Constitution does not bar states from calling their own those who do not hold national citizenship. The proposition finds authoritative support, ironically, in the Supreme Court’s notorious 1856 Dred Scott decision, which found free blacks incapable of holding national citizenship. The court saw nothing incompatible in rejecting Scott’s claim to U.S. citizenship while assuming his citizenship in the state of Missouri. “It does not by any means follow, because he has all the rights and privileges of a citizen of a state,” wrote Chief Justice Roger Taney, “that he must be a citizen of the United States.” Though the 14th Amendment nullified the decision on the question of race and national citizenship, it still stands as good law for the possibility of freestanding state citizenship.

Of course, politically speaking, the federal government would have a harder time deporting an undocumented immigrant who carries New York citizenship. And that’s as it should be. Unlike sanctuary laws, which have applied to any territorially present alien, the New York measure would extend only to established immigrant residents. Given how impractical it is to deport the estimated 12 million undocumented immigrants in the United States, those who would be counted as official members of subnational communities should be the lowest enforcement priority.

The New York proposal contradicts the perception that state and local governments are systematically unfriendly to immigrants. Arizona’s SB 1070 and a handful of copycat laws captured the public imagination. SB 1070 was largely gutted by the Supreme Court’s 2013 ruling in Arizona v. United States, but it probably would have died a natural death as the state suffered the commercial consequences of a tarnished brand. Efforts to enact anti-immigrant legislation of any kind have petered out in other states in the face of opposition not just by immigrant advocates but also by business. Meanwhile, cities such as New York, Chicago and Philadelphia states states like California and Connecticut will no longer hand undocumented immigrants over to federal immigration authorities even when they have been arrested on criminal charges. For its part, Detroit wants its own special quota of immigrants to help reverse its depopulation.

Immigration reform continues to sputter in Washington, with the primary defeat of erstwhile House Majority Leader Eric Cantor, a pro-reform Republican, the latest in a string of setbacks. Immigration reform is dead until the midterm elections and, at best, an uncertain prospect thereafter. In the meantime, cities and states are moving into the vacuum in a way that advances immigrant interests. New York’s move to mint its own citizens sets up a symbolically important endpoint for the new immigration federalism.

Peter Spiro teaches at Temple University Law School. His book “At Home in Two Countries: The Past and Future of Dual Citizenship,” will be published by NYU Press this spring.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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