Through an exploration of relevant legislation and court cases, this article discusses the contemporary constitution of neoliberal subjects via the devolution of select immigration powers to state and local governments by the federal government of the United States. Since the latter decades of the nineteenth century, the federal government has had plenary power over immigration, which has enabled it to treat “people as immigrants” (or as “nonpersons” falling outside of many Constitutional protections), simultaneously requiring that states and cities treat “immigrants as people” (or as persons protected by the Constitution). Beginning in the mid-1990s, however, the devolution of welfare policy and immigration policing powers has challenged the scalar constitution of personhood, as state and local governments have newfound powers to discriminate on the basis of alienage, or noncitizen status. In devolving responsibility for certain immigration-related policies to state and local governments, the federal government is participating in the rescaling of membership policy and, by extension, the rescaling of a defining characteristic of the nation-state. This recent rescaling is evidence of the contemporary neoliberalization of membership policy in the United States, and specifically highlights the legal (re)production of scale.
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