A Federalism Critique of 287(g) agreements

Here is an interesting federalism critique of 287(g) agreements:

"Federalism, States' Rights and Immigration Policy" APSA 2010 Annual Meeting Paper MARY MCTHOMAS. ABSTRACT:  There has been increased attention on state involvement in immigration policy, especially in light of the proliferation of state and local ordinances aimed at the detection and detention of undocumented migrants. Immigration is indisputably a federal issue. What is questioned is where and how to balance state police powers against federal prerogative to maintain a unified federal regulatory scheme. This issue tends to be framed in terms of state encroachment into a federal sphere pitted against states’ rights to protect their borders when federal immigration enforcement fails to do so. In either case, the picture painted is of the states attempting to garner more power. What remains unexamined is how the federal government is potentially overstepping its bounds through the use of 287(g) agreements. Section 287(g) of the Immigration and Nationality Act authorizes state agents to perform immigration law enforcement functions. The resulting agreements between local and federal enforcement agencies essentially turn local agents into federal agents. I examine this practice in light of the devolution of federalism under the Rehnquist Court. Specifically, in Printz v. United States, the Court viewed the use of state agents to perform federal functions as a violation of the separation of powers that would essentially turn state officers – and by extension, the states - into puppets of the federal government. While not coerced into the 287(g) agreements, the states are still in the position of having their officers co-opted by the federal government. Hence, the states agreement to be involved in immigration enforcement may actually undermine their sovereignty.

KJ