Federalism on ice: state and local enforcement of federal immigration law.

• Author: Booth, Daniel

1. INTRODUCTION

   In October 2002, Lee Malvo, a young illegal alien from Jamaica, who along with John Allen Muhammed became known as the "D.C. Snipers," went on a deadly shooting spree in the Washington, D.C. area. (1) From 1996 to 1999, Angel Resendiz, an illegal immigrant later nicknamed the "Railway Killer," committed a series of gruesome murders in the United States. (2) In February 2004, a woman was gang-raped and murdered in New York by five illegal aliens. (3) And on September 11, 2001, nineteen Arab hijackers flew commercial airplanes into the World Trade Center. These crimes share a common attribute: they were all committed, at least in part, by illegal aliens who, before committing their offenses, had previously been detained by local or state police officers. (4) Had these officers enforced the immigration laws that provided for these illegal aliens' possible deportations, these aliens would not have been free to carry out their crimes.

   Some suggest that more stringent immigration policies, including relying on state and local officials to enforce federal immigration laws, would promote national security and prevent crime. (5) To accomplish these goals, members of both houses of Congress have proposed legislation that would facilitate cooperation among federal, state, and local officials, and create incentives for state and local police officers to assume increased responsibility in enforcing immigration laws. First, in July 2003, the U.S. House of Representatives introduced H.R. 2671, the Clear Law Enforcement for Criminal Alien Removal Act of 2003 (CLEAR Act). (6) In November 2003, the U.S. Senate introduced S. 1906, the Homeland Security Enhancement Act of 2003 (HSEA). (7) Nearly two years later, in June 2005, congressmen reintroduced both pieces of legislation in substantially similar form as the Clear Law Enforcement for Criminal Alien Removal Act of 2005 (8) and the Homeland Security Enhancement Act of 2005. (9) These bills affirm that state and local law enforcement are entitled to support the federal government in enforcing immigration laws. More significantly, the CLEAR Act of 2005 proposes making the distribution of federal funds to local authorities dependent on whether local authorities assist in or stymie the enforcement of immigration laws.

   Proponents of these laws argue that they are necessary to ensure homeland security after 9-11. (10) Opponents suggest that the laws will overburden local law enforcement, unwisely divert limited resources, and destroy the beneficial relationships that law enforcement officers have established with local immigrant communities, thus hindering these officials' ability to enforce the law and solve crimes. (11) Opponents also suggest that state and local enforcement of immigration laws violates constitutional principles of federalism by allowing or requiring state and local officials to assume distinctly federal roles. (12)

   This Note addresses the degree to which the proposed legislation raises federalism concerns. Specifically, it answers whether federal law preempts states from enforcing federal immigration law, or whether the states have the inherent authority to enforce such laws. It also addresses the degree to which the proposed uses of the Spending Clause constitute coercion and commandeering of the states.

2. SHOULD STATE AND LOCAL LAW ENFORCEMENT BE INVOLVED IN ENFORCING IMMIGRATION LAWS?

   1. The Case for State and Local Enforcement

      With a limited force of approximately 2,000 federal agents, (13) the federal government is unable to enforce federal immigration law effectively across the entire country. On June 30, 2005, Senator Jeff Sessions described the problem during debate on the Senate floor. (14) It is estimated that there are between eight and twelve million illegal immigrants living in this country, with an additional 800,000 joining that number each year. (15) Of the total number of illegal aliens, 450,000 are estimated to be alien absconders: illegal aliens that have been issued deportation orders, but have not yet been deported because they did not appear at their hearing. (16) Moreover, an estimated 86,000 of these illegal aliens have been convicted of deportable crimes, yet remain in the United States. (17)

      That there are 86,000 criminal illegal aliens living in this country may itself be cause for some alarm, but Senator Sessions ominously tied the problem to the war on terror when he added that "3,000 of the 'alien absconders' within our borders are from one of the countries that the State Department has designated to be a 'state sponsor of terrorism." (18) Furthermore, the number of illegal aliens "outweighs the number of federal agents whose job it is to find them within our borders by 5,000 to 1." (19) Given the vast number of illegal aliens in this country, the federal government simply does not have the manpower to enforce immigration laws. It is against this backdrop that proposals to allow or require state and local police officers to assist in enforcing immigration laws have been grounded. Such proposals increase the overall capability of the federal government to enforce the federal immigration laws by essentially adding 700,000 pairs of eyes and ears to the force of federal immigration agents (20) The addition of these officers could be essential to effective enforcement of our immigration laws. (21)

   2. The Case for the Status Quo

      Although the arguments in favor of requiring or allowing state and local law enforcement to enforce immigration laws may initially seem compelling, policy makers must evaluate several countervailing considerations. If state and local police divert limited resources to the enforcement of federal immigration law, then fewer resources will remain for typical law enforcement functions, (22) including those on which our national security policies depend, such as protecting industrial facilities, channels of commerce, and serving as "first responders." (23)

      Additionally, requiring state and local officials to enforce immigration laws may actually destroy the relationships that these officials have with the aliens in their communities, thus making it less likely that illegal aliens, fearing deportation, will come forward with information about crimes. (24) This conflict is particularly problematic when victims of crime--especially sexual assault and domestic abuse--are afraid to report such crimes for fear of subsequent deportation. (25) If police are perceived as agents of Immigration and Customs Enforcement (ICE), (26) their ability to enforce laws and fight crime could be seriously undermined. (27)

3. STATE AND LOCAL POWER TO ENFORCE IMMIGRATION LAWS

   Assuming arguendo that it is a good idea for state and local authorities to enforce immigration laws, it is worth evaluating the degree to which these officials already have the authority to enforce such laws.

   1. Constitutional Preemption of State Authority

      The Constitution does not directly define the scope of federal power to regulate immigration, (28) but possible textual sources of the federal power include the Naturalization Clause (29) and the Migration Clause. (30) However, although the Naturalization Clause addresses citizenship, it does not directly mention the regulation of aliens. Moreover, whereas some nineteenth-century commentators may have cited the Migration Clause for the proposition that immigration regulation was an exclusively federal power, this explanation was largely discredited after the Civil War, and most modern scholars view the Migration Clause as dealing primarily with slavery. (31)

      The earliest debate regarding the distribution of powers over immigration between the federal and state governments arose in the context of the Alien Act of 1798. (32) Debate surrounding this law focused on whether Congress could supersede the authority of states to regulate immigration. (33) Proponents of the Virginia and Kentucky Resolutions--which opposed the Alien and Sedition Acts--claimed that the states, not the federal government, retained general power over aliens. Supporters of the Act alluded to international norms, which suggested that one of the inherent powers of a sovereign was the power to control alien populations. (34) The Act's supporters claimed that this international norm was embodied in various elements of the Constitution, including the Commerce Clause, the Necessary and Proper Clause, and the War Powers Clause. (35)

      On the other hand, some suggest that states, as sovereign entities, possess the inherent authority to enforce immigration laws and regulate immigration. (36) In other words, the states retain police power that is "entirely independent of the U.S. Constitution," (37) a power that includes "protect[ing] the lives, health, morals, comfort, and general welfare of the people." (38) And whereas the federal government is a government of enumerated powers, the state governments' powers are limited only to the extent that the Constitution or federal law preempts such power. (39) Since the Constitution does not clearly define the source of immigration power, some conclude that the states retain this power. (40) Although a state's police power unquestionably includes the ability to promulgate and enforce criminal laws, it is less clear that a state has the ability to enact and enforce civil laws regarding immigration. Several states have enacted civil statutes on immigration, but many of these statutes have been invalidated by courts (41) or preempted by federal legislation. (42)

      Moreover, even if immigration law is substantially linked to foreign policy, the argument that states have "inherent power" over immigration is strongly countered by United States v. Curtiss-Wright Export Corp., (43) which noted that exclusive federal control over foreign policy was not a power "carved out" of the states' powers because the states never actually had any power over foreign relations. (44) Along the same lines, others...