César Cuauhtémoc García Hernández†
As the United States Supreme Court has repeatedly reiterated since the late nineteenth century, immigration law is an area of federal dominance. The power “to forbid the entrance of foreigners . . . or to admit them only in such cases and upon such conditions as it may see fit to prescribe[,]” the Court wrote in 1892, “is vested in the national government.” More recently, the Court explained in 2012 that the federal government has “broad, undoubted power over the subject of immigration.”
Despite the federal government’s expansive reach in immigration law, the states nonetheless retain authority that allows them to play an important role in migrants’ lives. Through their traditional powers to adopt criminal statutes and police their communities, states can indirectly—but intentionally—inject themselves into the incidents of ordinary life as a migrant. In a number of ways, Colorado has done just that. One notable example is a criminal prohibition against human smuggling, a challenge to which is currently pending before the Colorado Supreme Court. This essay begins by addressing that statute’s reach. It then proceeds to discuss the statute’s treatment in the Colorado Court of Appeals and the challenges against it pending before the Colorado Supreme Court. The essay closes by placing the human smuggling provision within a broader context in which states criminalize immigration-related activity.