States pushing immigration reforms, but are still limited by federal authority
As states head into their 2026 legislative sessions, immigration remains a hot topic. Some states are looking to help federal immigration enforcement while others are trying to push back.
But how much power do states really have when it comes to immigration enforcement?
State powers
Overall, very little.
“Effectively, none,” David Bier, director of immigration studies at the CATO Institute, told Straight Arrow News. “The federal government sets immigration policy for the United States. The states can’t control what federal agents do in their official capacities as federal agents.”
In 1875, the Supreme Court of the United States ruled jointly on Henderson v. Mayor of New York and Chy Lung v. Freeman and made it abundantly clear the federal government controls immigration policy in this country.
“The Supreme Court has not wavered from that approach that it developed originally in the late 19th century,” César García Hernández, a law professor at Ohio State University, told SAN.
Another expert SAN spoke with agreed the law is clear.
“The federal government is responsible for admitting immigrants to the country, right?” Michele Waslin, director of the immigration research center at the University of Minnesota, told SAN. “They determine who and how many people are allowed to come into the country. And they also determine who is in violation of immigration laws, and it’s only the federal government that can remove people from the country.”
Where states can have some say in the matter is on how immigrants are treated once they’ve arrived.
“States have been responsible and can make a state or a city much more welcoming to immigrant communities or not very welcoming to immigrant communities,” Waslin said.
As far as regulating what federal immigration enforcement officials can and can’t do, states don’t get a lot of room to play with.
“They can’t criminalize their federal procedures or ban masks or tell them where they can and cannot operate,” Bier said. “It’s more debatable whether states could arrest an officer who violates the constitutional rights of the residents there. That’s something that really hasn’t been tested.”
When it comes to actual immigration policy, state legislatures have little-to-no power to create policy. Where states will try to jump in really falls into two different buckets.
First, how much state and local law enforcement will cooperate with federal immigration officials.
“The U.S. Constitution prohibits the federal government from forcing the states and local governments to do its bidding, and so state and local governments can choose to work alongside ICE or Customs and Border Protection, but they are not required to do so,” Hernández said.
The second falls more into the realm of public safety than it does actual immigration law. States have much more power to regulate public safety than immigration.
“This is about the safety of all residents in that particular area, at least that’s the way that the people who are proposing these are certainly going to see it right?” Waslin said. “I’m here in Minneapolis and I don’t see what’s happening here in our streets as immigration enforcement because a white U.S. citizen was shot in the head.”
That’s where things get tough because states have little power to control federal agents.
“For the most part, states can regulate their own police and their own personnel, but when it comes to controlling what the federal government does, they have virtually no authority to do so,” Bier said.
Helping the Trump administration
Republican-led states are naturally pushing to help the federal government with their immigration agenda.
“It’s absolutely to be expected that Republican led jurisdictions would try to leverage state and local taxpayer dollars as well as legal authority to help the Trump administration accomplish what is its top policy issue, and that’s making life in the United States more hostile for migrants,” Hernández said.
Tennessee Republicans have put forth eight bills targeting illegal immigration with many of them backed by the Trump administration. Those bills include establishing an “English only” driving test and making it a state-level offense to stay in the state after receiving a final deportation order.
Meanwhile, the state’s progressives are pushing back with legislation targeting Immigration and Customs Enforcement (ICE).
“There’s not any limits on how far a state can go, as long as the federal government is cooperating with it and agrees that this is what they want to see happening,” Bier said.
Republican-led Florida has similar plans to Tennessee with several bills now being pushed for the 2026 session. That includes legislation that would fine employers who ignored their workers’ documentation status and denying undocumented immigrants bank loans.
While states can go as far the federal government wants, they can’t push any further than that.
“States can’t go farther than the federal government and federal law when it comes to immigration, so they can’t make it a criminal offense to cross state lines or to be in the country illegally,” Bier said. “They can’t create new crimes that don’t exist in federal law, which some states have tried to do.”
One of those states was Texas, which pushed immigration laws that included criminalizing undocumented people entering the state from Mexico and allowing local police to make arrests based on immigration status. Those laws were struck down by a court that declared controlling immigration is exclusively a federal power.
“That’s when they start running into the risk of treading on the federal government’s responsibilities under the U.S. Constitution to create and enact those laws that govern who can come to the United States and under what conditions they can live here,” Hernández said.
Other states looking to help the federal immigration effort include South Carolina and Indiana.
Pushing back on the Trump administration
Democratic state lawmakers have attempted to pushback against the Trump administration.
New Jersey’s outgoing Gov. Phil Murphy just signed a bill to designate hospitals and schools as his safe zones, meaning ICE agents cannot enter without a judicial warrant. Murphy vetoed two other bills that he said were likely to be challenged in court.
The bill he signed has stronger legal ground, according to Hernández.
“Schools are largely a product of local governments,” he said. “They are financed primarily by local governments and operated through the authority of a municipal or sometimes a county level government entity. And that means that school property is local public property. It’s administered by the local school district or local city, and they get to control who comes in, who doesn’t, and for what purposes.”
Democratic lawmakers in Colorado are pushing several bills, including one that would allow any Coloradans injured during federal immigration enforcement actions to sue federal officers. New York and Oregon have put forth a similar measure.
“I think that these types of proposals are not about immigration,” Waslin said. “This is about community safety.”
It’s unclear how those lawsuits would overcome qualified immunity in a courtroom, which provides law enforcement a type of legal shield from actions they take in the course of their roles.
A popular move from some Democratic-led states last year was to try and ban federal immigration agents from wearing masks and face coverings while conducting operations.
Federal officials have largely written these efforts off.
“They just can’t do that,” Bier said. “You’re directly regulating the federal government’s agents and how they carry out their operations. Yeah, there’s no way that law could be enforced.”
Hernández shared similar sentiments over the fact that there’s no precedent for that kind of legal battle.
“There are not any legal decisions that I can point to help clarify what exactly would be the outcome of a legal fight that results if state or local government does try to ban ICE or border patrol officers from routinely covering up their faces,” he said.
Most of the proposed legislation from the states against the Trump administration do fall more into the category of public safety as opposed to any kind of immigration enforcement reform.
“They should have more control over public safety issues in their own streets,” Waslin said.
And that is something backed by U.S. law.
“Broadly defined, public safety is within the jurisdiction of the state’s police powers under the Constitution,” Bier added.
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Ella Rae Greene, Editor In Chief
