Immigration Regulation and the Role of Local Governments

Immigration issues can affect local communities and the entire nation. In recent years questions and concerns about immigration have risen to the forefront of legal, political, and public discussion in the U.S.

The change in presidential administrations in January 2025 (and corresponding changes in federal immigration enforcement measures and priorities) has reignited many local questions, concerns, and uncertainties surrounding immigration law and policy, leading local governments to ask:

• Can immigration laws only be made by the federal government, or can state and local governments also make their own laws about immigration?
• How do federal immigration enforcement requirements apply to state and local governments?

This blog will address these questions by sorting out respective federal, state, and local government powers and responsibilities over immigration regulation and enforcement.

Immigration Enforcement and the Intergovernmental Immunity Doctrine

The power to directly regulate immigration is “unquestionably exclusive federal power.” See De Canas v. Bica (1976).

The U.S. Congress uses this power to enact many immigration laws in Title 8 of the United States Code (USC), regulating how an individual can become a U.S. citizen, the manner in which an individual can legally enter and remain in the country (either temporarily or permanently), and the legal basis to deny an individual entry into the U.S. or to detain and remove anyone determined to be in the county unlawfully.

Recognizing this federal power over immigration law, the “intergovernmental immunity” doctrine developed by courts prohibits state and local government from adopting laws that affirmatively and directly regulate federal immigration enforcement or laws that discriminate against the federal government (or its enforcement contractors) with respect to immigration matters.

For example, U.S. v. King County (2024) invalidated a county executive order that prohibited Boeing Field from providing services to airlines that transported immigration detainees under contracts with Immigration and Customs Enforcement (ICE). Three such airlines reacted to the county’s order by ending their Boeing Field operations. The federal government argued that the county’s executive order impermissibly frustrated its immigration enforcement efforts.

The court in U.S. v. King County agreed, holding that the county’s order essentially prevented federal government contracts with private airlines for detainee transport services, improperly overriding federal government immigration enforcement decisions and activities. The court also declared that the order impermissibly singled out the federal government for discriminatory treatment in Boeing Field airport services.

That said, can state and local governments also make their own laws related to immigration?

Permissible actions for state and local governments

Despite the intergovernmental immunity doctrine, state and local governments can pass laws that “touch” on immigration or that affect it indirectly. See Arizona Dream Act Coalition v. Brewer (2014).

For example, U.S. v. California (2019) upheld AB 450, a California law prohibiting employers from giving ICE agents warrantless access to private workplace areas and requiring employers to notify employees about anticipated federal immigration workplace inspections. Although AB 450 impacted federal immigration enforcement, it was upheld because it only regulated California employers — it didn’t directly regulate the federal government or its contractors, decisions, or activities.

Similarly, Nwauzor v. GEO (2025) upheld Washington State’s ability to require that immigration detention centers pay the state’s minimum wage to working detainees. Under a federal government contract, GEO operated an immigration detention center with a voluntary detainee work program. In line with the contract’s minimum requirements, GEO typically paid working detainees $1 per day. The Nwauzor Court upheld the state’s ability to require that the detainees receive the state’s minimum wage for their work, noting:

nothing — either in federal law or in GEO's contract with the federal government — prevents GEO from paying Washington's minimum wage to its civil detainees who perform work for the benefit of GEO. [emphasis added]

Accordingly, even though enforcing state minimum wage laws in this context related to immigration, it did not directly regulate the federal government or interfere with the federal government’s contract with GEO. The Nwauzor Court also noted that unlike the executive order in the U.S. v. King County case, state minimum wage laws apply equally to all privately-run immigration detention centers — not just to those under contract with the federal government.

A more recent example of immigration-related state regulation can be found in an executive order (EO) issued by Governor Bob Ferguson on January 27, 2025. An executive order is a directive issued by an executive official (such as a governor or the U.S. President) that can specify government enforcement priorities or the uses of government resources or personnel. These orders have legal force, but courts can limit or overturn them if they exceed the issuing official’s powers or otherwise violate the law.

Ferguson’s EO 25-04 creates a Rapid Response Team within Washington’s Department of Children, Youth and Families (DCYF) and directs it “to explore recommended policies and actions” to reduce harm to children “who experience family separation through the deportation or detention of their parents or primary caregivers.” While EO 25-04 relates to federal immigration enforcement, it regulates DCYF rather than the federal government directly and explicitly states: “This Executive Order shall be implemented consistent with applicable law.”

Enforcement: Questions for State and Local Agencies

Immigration enforcement can significantly impact local employment, education, and family and social matters, in addition to other concerns, prompting local governments to ask whether assisting federal government immigration enforcement efforts is legally permitted or required. For example, state and local governments may ask:

• If federal ICE agents present an arrest warrant, must law enforcement agencies help them arrest the warrant-named individual?
• If ICE sends a “detainer” or “hold” request asking a local correctional facility to detain an inmate for immigration-related purposes, must the facility comply?

Are state and local governments required to assist the federal government’s enforcement of immigration laws within their jurisdictions? Such questions involve the “anticommandeering doctrine,” a legal principle limiting the federal government’s ability to command state and local assistance with immigration enforcement.

The anticommandeering doctrine

Under this doctrine, the U.S. Congress cannot issue direct orders to state or local lawmakers, and state and local governments can refuse to adopt federal immigration policies — even if their refusal “inevitably frustrates” federal immigration enforcement. See the U.S. v. California decision.

Moreover, the federal government cannot force state governments — and by extension local governments — to enforce federal laws. See, e.g., the U.S. Supreme Court’s decisions in New York v. United States (1992) and Printz v. United States (1997).

Several federal immigration laws reflect this principle. For example:

• 8 U.S.C. §1252c authorizes (but does not require) state and local officials to arrest and detain illegal aliens meeting certain requirements. Further, this federal law grants state and local officials this arrest authority only “to the extent permitted by relevant state and local law.”
• 8 U.S.C. §1357(g) allows the U.S. Attorney General to enter agreements with state and local governments to investigate, apprehend, or detain aliens and to transport them across state lines to detention centers, but, importantly, state and local governments aren’t legally required to enter these agreements.

The U.S. v. California decision applied the anticommandeering doctrine to another California law known as SB 54, which prohibited state law enforcement from asking individuals about their immigration status or detaining individuals based on federal immigration “hold” requests and limited local law enforcement’s ability to release detained individuals to federal immigration authorities.

The federal government challenged SB 54, arguing that it “unlawfully obstructs the enforcement of federal immigration laws.” The U.S. v. California Court noted that SB 54 undoubtedly “makes the jobs of federal immigration authorities more difficult,” but ultimately upheld the law based on the anticommandeering doctrine.

Shortly after the U.S. v. California decision, Washington passed the Keep Washington Working Act (KWW), which created similar laws restricting state and local assistance with federal immigration enforcement (see RCW 10.93.160, RCW 43.17.425).

Among other restrictions RCW 10.93.160 prohibits state and local law enforcement (including school resource officers) from:

• Asking about or gathering information about an individual’s immigration status, unless the information connects to an investigation into a violation of state or local law;
• Detaining individuals solely to determine their immigration status;
• Taking persons into custody (or holding them in custody) solely due to their immigration status or solely due to a civil immigration warrant or an immigration “hold” request; and
• Entering into any oral or written agreement related to immigration enforcement under 8 U.S.C. §1357(g) (as noted above, federal law does not require these agreements).

RCW 43.17.425 prohibits state agencies and law enforcement from using state funds, property, equipment, or personnel to cooperate with federal immigration investigations or enforcement, except as necessary to comply with state or federal law, a court order, or legally permitted agency duties, functions, or business.

In a 2025 lawsuit, Washington State alleges KWW violations by a local county and sheriff’s office, including unlawfully sharing personal information with federal immigration authorities and detaining individuals based solely on immigration status. The lawsuit remains pending and subject to further proceedings.

Requirements at the state and local level

Despite the anticommandeering doctrine, there are two federal immigration laws that the state and local governments must comply with in 8 U.S.C. §1373 and 8 U.S.C. §1324(a).

First, 8 U.S.C. §1373 prohibits state or local government agencies from blocking or restricting the maintaining of information about an individual’s lawful or unlawful immigration status or the exchanging of that information with federal authorities or other government entities. The U.S. v. California decision noted that 8 U.S.C. §1373 applies only to sharing information about an individual’s lawful or unlawful immigration status — the law does not prohibit state or local laws that restrict sharing other individual immigration-related information with federal authorities (like detention release dates or addresses). In accordance with 8 U.S.C. §1373, both RCW 10.93.160 and RCW 43.17.425 allow state and local law enforcement to collect, use, or disclose information as required by federal law.

Second, 8 U.S.C. §1324(a) prohibits Washington employers from knowingly employing persons that are not lawful permanent U.S. residents or legally authorized to work in the U.S. When hiring workers, Washington employers (including state and local governments) must ensure compliance with federal immigration laws by documenting worker identity and legal ability to work on an I-9 form for federal government verification. Local governments often hire labor by contract (in the public works context, for example). In those scenarios the contracted employer must comply with these federal requirements and the contracting locality can generally defer federal immigration inquiries to that employer, but local governments remain prohibited from knowingly hiring or employing unauthorized workers, even through contracts. See 8 U.S.C. §1324a(a)(4).

Conclusion

This blog attempts to address and demystify pressing immigration related questions for localities, but immigration issues often involve a complicated web of federal, state, and local regulation. Localities are encouraged to consult with their legal advisors whenever immigration related questions arise in their jurisdiction.