The use of tax law to patrol the border is not new. In the 19th century, several states enacted constitutionally unhealthy tax laws to target migrants. New York has levied a tax on oceanic migrants for “hospital money.” Massachusetts supplemented its foreign passenger tax by requiring a $ 1,000 bond for any “newly arrived, insane, foolish, maimed, elderly or disabled person.”

The Supreme Court ruled the taxes unconstitutional, explaining that the question of whether foreigners “will be forced to pay a tax before being allowed to set foot on land” is an exclusively federal question. Even after this ruling, California imposed special taxes on Chinese migrants until the state Supreme Court intervened.

Taxes on migrants have evolved widely, from explicit charges at ports of entry to punitive federal tax provisions that throw immigrants into financial adrift.

Although federal tax law allows and requires people without a Social Security number to report their taxes using an individual tax identification number, these filers are excluded from many tax credits. Consider that the CARES law has conditioned the stimulus payments of the COVID era not only on the social security numbers of beneficiaries, but also those of their relatives. The law initially excluded even citizen spouses from receiving payment, if they filed jointly with a non-citizen without a social security number. Meanwhile, citizen children of parents without a social security number have also been left out.

These exclusions echoed immigration status restrictions in the federal Income Tax Credit (EITC) and the Child Tax Credit – two provisions on which working-class and poor families depend. They also cite the IRS’s direct collaboration with the Department of Homeland Security in violent workplace raids. (IRS investigation into tax compliance of Tennessee meat packer ended with allegations of armed state and federal officers violating workers’ civil rights with machine guns, slurs racial issues and massive detentions.)

Americans seem skeptical of immigration law enforcement, which also works on uncertain legal ground. In a poll last year, there was more support than opposition to extending pandemic payments to “those who pay taxes in the United States”, although support for others. punitive execution measures prevailed.

Recent lawsuits have challenged the CARES law’s exclusion of citizen parents of undocumented workers. In RV v. Yellen, the plaintiff citizens alleged that the denial of emergency tax relief to children otherwise eligible for the lack of their parents’ social security number violated equality of protection. In another case, the principal plaintiff Ivania Amador and her three children had social security numbers, while her husband did not. She argued that denials based on their spouses’ undocumented status violated their due process based on marriage and their rights to equal protection, as well as their First Amendment rhetoric and their rights of association. Border control through tax law can unconstitutionally cross the boundaries of family integrity.

As the federal government financially rejects undocumented immigrants, some states are beginning to offer lifelines. New York recently established an Excluded Worker Fund to provide financial assistance to non-citizens excluded from unemployment insurance and federal programs. Meanwhile, states including California and Oregon have extended their state-level EITCs to include undocumented immigrants, potentially including jobs considered illegal under federal law. These financial and fiscal laws raise thorny questions about the end of state authority and the domination of federal power.

Federalism limits the capacities of states and cities to directly regulate immigration. Yet despite these limitations, states still have unique fiscal powers, particularly to promote the health and safety of residents through immigration statuses. Cities and states choose to drive inclusion to balance the militarization of federal tax law against immigrants. While the Supreme Court may ultimately re-sway the limits of state and local action, for now, states and localities should legally feel comfortable pursuing a range of financial and fiscal policies including immigrants.

At the federal level, there are effective methods of dealing with tax non-compliance beyond cooperation with immigration law enforcement. In 2017, the Inspector General of the Treasury suggested a “more focused strategy” on employers and payroll service providers to reduce tax non-compliance. Unlike using tax law to deport migrants, focusing on employers could generate the necessary income and comply with the Supreme Court’s employer-focused interpretation of immigration enforcement laws. On the other hand, cooperation between tax authorities and immigration authorities could hamper the tax compliance of undocumented migrants, lest sharing of information lead to deportation.

Enforcement of poor immigrants through tax law weakens the boundaries between immigration law and tax law designed to protect citizens and non-citizens. Respect for these borders is as important as respect for territorial borders.

Shayak Sarkar is a lawyer and economist at the University of California-Davis, where he studies the intersection of immigration law with tax and financial regulation.