Thursday, November 10, 2011

Guest Post: A New Take on States’ Rights: Can Local Governments Opt Out of Federal Immigration Enforcement? By Christopher N. Lasch, J.D.

A New Take on States’ Rights: Can Local Governments Opt Out of Federal Immigration Enforcement? By Christopher N. Lasch, J.D.

Last year, the U.S. government deported 400,000 immigrants, the most in any year of our history. But on October 18 in California, the Santa Clara County board of supervisors declared its independence from federal immigration enforcement, announcing the county would no longer routinely honor federal immigration detainers.

The discussion of states’ rights in the immigration debate has largely focused on the question of whether states such as Arizona, Alabama, and Georgia, may “opt in” by passing local immigration enforcement measures to supplement the federal government’s enforcement. Santa Clara County’s decision, while similarly grounded in the Tenth Amendment’s reservation to the states of powers not explicitly granted to the federal government, affirmatively answered an equally important question: Can local governments opt out of immigration enforcement?

Questions about opting out made news in April when immigration advocates released documents concerning the Department of Homeland Security’s Secure Communities program. Routinely, local law enforcement officials submit booking fingerprints to the FBI for criminal background checks. Under Secure Communities, these fingerprints are then transmitted by the FBI to DHS, which then determines which prisoners to target for immigration enforcement.

Since its inception in 2008, opponents have denounced Secure Communities, charging it encourages racial profiling, diverts local resources from crime control, and makes communities less safe by discouraging immigrants from reporting crimes or cooperating with police. The documents released in April also highlighted another problem with Secure Communities: While DHS touted the program as aimed at “high-threat criminal aliens,” some 79% of immigrants targeted actually had either no criminal record or convictions for only traffic or minor offenses.

Following the April release of documents, an outraged Representative Zoe Lofgren (D-Calif.) questioned whether federal immigration officials had lied by telling local jurisdictions they could opt out of the FBI-DHS data sharing, the Congressional Hispanic Caucus urged the President immediately to “freeze” Secure Communities, and several states announced withdrawal from Secure Communities.

The federal response to the state backlash was equally strong. In August, DHS terminated every agreement it had entered into with the states, declaring such agreements unnecessary to data sharing under Secure Communities and rendering withdrawal from Secure Communities at best a symbolic gesture.

Yet in declaring local cooperation unnecessary, U.S. Immigration and Customs Enforcement overlooked a crucial fact. While the data sharing between the FBI and DHS may not need local cooperation, the principal enforcement tool behind Secure Communities absolutely depends on it.

Once immigration officials target a prisoner for enforcement, DHS issues a civil immigration detainer, a document requesting local officials to hold a prisoner beyond his or her release date so DHS can gain custody. Detainers cannot function without the voluntary cooperation of state and local officials. While a federal regulation declares local officials “shall” continue to hold the prisoner, there is good reason to believe this regulation exceeds the federal government’s power to tell state officials what to do. The Tenth Amendment forbids unfunded mandates that allow the federal government to commandeer state resources without reimbursement. And if there is one thing DHS has been clear about, it is that state and local governments will bear the expense of holding prisoners under immigration detainers.

Santa Clara is the most recent example of a local government effectively resisting immigration detainers. In June, San Francisco implemented a policy dishonoring some detainers. On September 7, county commissioners in Cook County, Illinois voted to stop complying with federal immigration detainers completely, with one commissioner describing the problem as a “$15 million unfunded mandate.” And now Santa Clara County will no longer honor immigration detainers unless the federal government agrees to pay the costs of detention, and then only if the prisoner has been convicted of a serious crime. The county refuses to honor any detainers for juvenile prisoners.

While some states and localities are deploying the “states rights” argument in support of the most onerous local anti-immigrant measures, these local governments are using the Tenth Amendment to resist overzealous federal immigration enforcement and uphold the civil rights of immigrants. On firm constitutional footing, they have taken a stand against an enforcement mechanism that co-opts local resources to serve the widely criticized and dubiously effective Secure Communities program. Other local governments should follow their courageous examples.

Christopher N. Lasch is an assistant professor of law at the University of Denver Sturm College of Law, where he teaches in the Criminal Law Clinic.

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