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Experts: State-Federal Cooperation Needed to Manage Migrant Flow

October 09, 2023 (4 min read)

Prof. Jacob Hamburger, Prof. Stephen Yale-Loehr, Oct. 8, 2023

"As major cities across the country struggle to welcome thousands of migrants who are in desperate need of housing and social services, mayors and governors are calling on the Biden administration to address the migrant crisis.  

New York’s mayor Eric Adams accused the White House of providing “no support on this national crisis,” which he warned “will destroy New York City.” Chicago’s Mayor Brandon Johnson signaled that the crisis in his city will cost taxpayers more than $255 million by year-end. 

At the core of these emerging tensions between Democrats at the local, state and federal levels is the issue of work permits. Federal law prevents an asylum seeker from working until six months after filing their application. In late September, the Biden administration announced it would allow certain migrants, including hundreds of thousands of Venezuelans, to apply for work authorization. Still, it will take time for many to find lawyers to help them with their applications, let alone for the government to process them. Faced with the task of housing and providing social services for migrants while they are legally unable to support themselves, city and state officials have been forced to fill the gap.  

What has emerged, however, is not a united state-level strategy to sway the administration to step in, but rather two contrasting approaches. One approach, spearheaded by Illinois lawmakers, rests on cooperation with the federal government. Another tack, proposed by Democratic leaders in New York, is far more confrontational — and potentially illegal under federal law.  

As state and local leaders begin to advance their own solutions to the growing migrant crisis in their communities, the Biden administration must take steps to ensure that federal-state cooperation, not confrontation, wins the day. If not, even well-meaning efforts by blue states may end up compounding the intergovernmental tensions that have helped produce the current standoff on immigration. 

In calling for more support from the Biden administration in August, Illinois Governor J.B. Pritzker (D) and Chicago Mayor Johnson (D) proposed a new system that would combine federal authority to allow immigrants who contribute a “significant public benefit” to enter the country with state plans to meet workforce and job training needs. Under the Illinois plan, federal agencies could use state and local leaders’ input as the basis to grant arriving immigrants “parole,” which would entitle them to immediate work authorization.  

In contrast, Democrats in New York have hinted at a much more confrontational approach to migrant work permits. Lawmakers are exploring potential bills that would allow the state to issue work authorization directly to asylum seekers, rather than wait for the federal government to do so through the ordinary process. 
Some versions of this plan may be illegal under federal immigration law. States have no authority to authorize private-sector employment. At the same time, legal scholars have explained that states may be able to hire migrants directly. Regardless, New York’s plan would be at odds with the Biden administration’s priorities. White House officials have discouraged states from creating their own immigrant work permits, hinting that this would usurp federal authority.  

Illinois and New York’s good cop-bad cop routine presents the Biden administration with a choice: Work with fellow Democrats at the state and local level to find creative solutions to welcome asylum seekers or continue to let states take things into their own hands. 

While we have previously endorsed a limited version of the direct state hiring option, Biden would be wise to follow the more cooperative approach. Use of “significant public benefit” parole to allow broad classes of migrants to enter the United States may be politically risky. But whatever form it takes — even through a limited pilot program — it is worth exploring how to seek out state input on how to get migrants where they want to be with the tools to succeed in and contribute to their new communities.   

State-federal cooperation could also serve as a blueprint for lasting immigration reform. If the Biden administration and its state partners are successful in addressing the current migrant crisis through executive action, this might inspire Congress to explore new opportunities for state and local input. Creative approaches to the current crisis could go a long way toward addressing both short- and long-term problems in the U.S. immigration system.  

If the administration fails to act by ignoring the Illinois approach or similar ideas, this will put pressure on states like New York to take more radical measures. This would exacerbate conflict between Democrats in local, state, and federal governments, adding to the immigration battles between Democrats and Republicans. Moreover, if state responses violate federal immigration law, it may put Biden in the unenviable position of having to decide whether to sue fellow Democrats.

President Biden does not bear full responsibility for the way these conflicts have developed. Many of the migrants arriving in blue states were bused or flown there by Republicans, including Texas Gov. Greg Abbott (R), with the explicit goal of sowing discord in “sanctuary cities.” But this too shows how important state-federal cooperation is for managing the levels of immigrant arrivals we have recently seen.   

Without federal leadership and coordination, it has fallen on politically motivated state actors to transport asylum seekers across the country. President Biden has an opportunity to follow a different path, though Democratic mayors and governors may have to push him toward it. "

Jacob Hamburger is a visiting assistant professor at Cornell Law School. Stephen Yale-Loehr is a professor of Immigration Law Practice at Cornell Law School.