Immigration Enforcement: A Federal Matter
Floating below the radar in the national immigration reform debate has been the issue of the role of state and local police in the enforcement of immigration laws. Recent actions by two states to address our broken immigration system have shed new light on the issue.
Last Monday, Governor Sonny Perdue of Georgia signed into law one of the more severe measures to address illegal immigration, which included a provision that would allow state and local law enforcement to detain arrestees for federal immigration law violations. And last Tuesday, Governor Janet Napolitano of Arizona took the opposite tack in vetoing a measure that would have allowed state and local law enforcement to arrest illegal immigrants for trespassing and challenge their immigration status. Gov. Napolitano got it right, and Gov. Perdue got it wrong. Extending enforcement authority of federal immigration laws to state and local police would be a misstep that would significantly compromise the safety and security of immigrant communities and unnecessarily handcuff state and local law enforcement in their ability to promote public safety.
Historically, enforcement of U.S. immigration laws has been the exclusive province of federal law enforcement with assistance by state and local law enforcement on criminal matters. Until 2002, the precedent set by the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) in a long-standing legal opinion recognized the lack of authority of state and local police to enforce federal civil immigration laws. Since the 9/11 attacks, there have been moves by DOJ and the Department of Homeland Security (DHS) to extend the reach of state and local police to play a more active role in enforcing U.S. immigration laws, a role that some states and localities have embraced, but many more have rejected.
Across the country, states and local law enforcement have opposed the added authority on grounds that are intertwined with the civil rights concerns of immigrant communities. Law enforcement has argued that it lacks the resources, training and information necessary to enforce complex federal laws and that such enforcement would create an inherent conflict with its public safety responsibilities by fostering hostilities with immigrant communities—both legal and illegal. As a result, immigrant communities would be less likely to cooperate in police investigations if they believed their immigration status was also under scrutiny. Immigrants who view state and local police as agents of deportation are far less likely to report abuse and other criminal activities in their communities. In addition, immigrant advocates rightly argue that the policy would amount to nothing short of racial profiling, while state and local law enforcement have voiced concerns about the potential for additional exposure to lawsuits for civil rights violations.
The legislation approved by the Senate Judiciary Committee and the basis of the stalled Senate compromise stops short of extending federal enforcement authority to state and local police, instead the legislation encourages DHS to seek MOUs (Memorandum of Understanding) with state and local police for cooperation on enforcement, essentially maintaining the status quo. The legislation also includes a provision to reimburse state and local law enforcement for expenses incurred in carrying out federal enforcement responsibilities. The draconian House immigration enforcement bill was amended to include the CLEAR Act ( the Clear Law Enforcement and Alien Removal Act), which goes beyond requiring state and local police to enforce federal immigration laws to deny DOJ funding or assistance to local authorities that fail to do so, and provides limited immunity for personal liability and civil rights abuses associated with state and local law enforcement carrying out the federal authority. While the language in the Senate bill is by far the better approach, maintaining the status quo is a drift in the direction of placing more federal enforcement authority in the hands of state and local police.
This is an issue where the United States can look abroad for guidance from the Organization for Security and Cooperation in Europe (OSCE), where the United States is a participating State. The OSCE’s High Commissioner for National Minorities recently released a set of recommendations on policing in multi-ethnic communities (pdf) that furthers the OSCE’s mandate to set standards for the rights of persons belonging to minority groups. The recommendations focus on promoting good policing in multi-ethnic societies and building relationships of trust and confidence between police and minorities. Although the Bush administration formally welcomed the recommendations and agreed in diplomatic-speak to “further study the guidance,” supporting a policy that would put state and local law enforcement in an adversarial relationship with immigrant communities in the United States is clearly at odds with the OSCE’s recommendations.
When Congress returns this week, consideration of comprehensive immigration reform must be a top priority. While the focus of the policy debate will continue to be on the larger security issues, providing a pathway to citizenship for undocumented immigrants, and the parameters of a temporary worker program, the role of state and local law enforcement in enforcing federal immigration laws also deserves attention. While proponents of such an extension will characterize opposition as harmful to strong enforcement, this could not be further from the truth. Strong border and interior enforcement are essential elements of comprehensive immigration reform that are not diminished by more rational thinking on who should enforce federal immigration laws. That responsibility is best placed in the hands of federal law enforcement, and it should stay that way.
Cassandra Q. Butts is Senior Vice President for Domestic Policy at the Center for American Progress.
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