Federalism and Fundamental Rights: Safeguarding the Rights of Undocumented Immigrants in the United States and the European Union

Abstract

Abstract: In both the United States and Europe, governments have stepped up initiatives to reduce unauthorized immigration. Direct immigration control measures such as border security are just one aspect of these efforts. Another key aspect consists of indirect immigration control measures, in the form of laws that restrict the ability of undocumented immigrants to work, study, rent property, or access public services.This article reviews recent developments in the United States with respect to indirect immigration control measures and maps out some points of comparison with analogous developments within the European Union. It provides an account of the wave of state and local anti-immigrant laws that swept the United States between 2006 and 2011 andsummarizes the developing U.S. jurisprudence on the constitutionality of these measures. It then offers some initial observations comparing the United States to the E.U. This comparison highlights the distinction between approaching anti-immigrant laws through the lens of federalism (or, in the terminology more common in Europe, competence) and approaching such laws as violations of fundamental rights.

Keywords : Irregular Migrants, Undocumented Immigrants, Federalism, Competence.