IMMIGRATION FEDERALISM: THE CASE OF IMMIGRATION ENFORCEMENT
BY NON-FEDERAL AGENCIES
By Eduardo Reyes Chávez
Since 2002, state and local governments have passed many laws and ordinances designed to regulate immigration. This
sort of activism, combined with the failure of the federal government to enforce immigration laws, has blurred the line
between who should and should not be enforcing immigration laws. This study seeks to clarify the debate concerning
the enforcement of immigration laws in the United States. Through an analytical review of the U.S. Constitution,
relevant U.S. Supreme Court rulings, and critical lower court cases, this study contends that the federal government is
entitled to exclusive enforcement of immigration laws. This conclusion centers on four main arguments: (a) the U.S.
Constitution and relevant court cases have established the federal government as the main enforcer of immigration
laws; (b) the complexity of immigration laws concerning the enforcement of criminal and civil regulation may result
in federal preemption for states and localities that overstep their formal agreements with the federal government; (c)
the unnecessary immigration enforcement by states can cause local officers to disregard their traditional job and use
their resources to enforce federal laws; and (d) local enforcement of immigration laws has further distanced immigrant
communities by the voluntary or involuntary violation of civil rights.
T
he United States has always attracted immigrants. In order to immigration enforcement until the passage of a comprehensive immigration
deal with the treatment of non-citizens, the United States has reform. The continual request of non-federal agencies to carry out their
created immigration laws that have regulated the movement of own enforcement is based on an apparent federal inefficiency in the immiimmigrants. Nevertheless, labor market flows and ineffective federal policy gration field. According to a poll reported by Boatright (2006), “Over 80%
have resulted in a large number of unauthorized
of Americans already think that state and local police
immigrants entering the U.S. and settling permashould be involved in immigration enforcement”
nently. According to Booth (2006), in 2005 there
(p. 1667). Not only are non-federal governments
“In most countries in the world, it is
were an estimated 8 to 12 million undocumented
expressing their willingness to enforce immigration
the national government alone that
immigrants in the U.S., “with an additional 800,000
laws, but also the general public seems to agree with
has jurisdiction over immigration
joining that number each year” (p. 1066). More than
the idea.
two-thirds of the unauthorized immigrants in the
In most countries in the world, it is the national
law and enforcement. In the United
U.S. have entered the country within the last 10 years
government
alone that has jurisdiction over immiStates, however, the federal system
(C. M. Rodríguez, 2008). The uncontrolled levels
gration law and enforcement. In the United States,
of government complicates the
of illegal immigration have made it clear that there
however, the federal system of government complicreation and enforcement of
is an immigration problem in the United States.
cates the creation and enforcement of immigration
immigration law and policy.”
In response to ineffective policy and enforcement
law and policy. The proliferation of state and local
by Washington, DC, state and local governments
enforcement measures raises the question whether
have reacted by passing their own immigration
such activities are constitutional. In this paper, I
enforcement legislation. In 2007, “More than 1,400 bills addressing immi- first conduct a historical analysis of immigration enforcement in the United
gration…in some capacity were introduced in state legislatures across the States to discuss the participation of states, localities, and the federal governcountry” (C. M. Rodríguez, 2008, p. 569). In her research, C. M. Rodríguez ment. Second, I look at the legal framework in immigration to distinguish
(2008) said that non-federal legislatures will continue to be active in civil and criminal law. Third, I examine the constitutionality of immigration
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Immigration Federalism: The Case of Immigration Enforcement by Non-Federal Agencies
Eduardo Reyes Chávez
enforcement to look for factual evidence regarding enforcement support
for federal and non-federal regulation. Fourth, I analyze two court cases
that support immigration enforcement and two cases that allow for state
and local enforcement. Fifth, I argue that non-federal enforcement is likely
to result in the alienation of the immigrant community, is subject to lack
of immigration expertise by non-federal agents, may violate civil rights and
civil liberties, and that non-federal enforcement is an unnecessary expenditure. Finally, I analyze the implications of federal preemption through
explicit statutory language, congressional intent, and direct conflict of state
and federal law.
non-federal agencies to enforce their own immigration laws (Kalhan, 2007).
Under the Articles of Confederation, the federal government was restricted
from regulating the flow of immigrants. Even though the federal government was able to obtain more power after the ratification of the new Constitution, the question of immigration enforcement was still open to individual state interpretation. The result was a continuous wave of state and
local legislation that directly affected non-citizens and questioned the role
of immigration enforcement.
In 1842, the Supreme Court of the United States officially established
the federal government as the primary enforcer of immigration laws. In
their decision, the Supreme Court struck down laws in the states of
KEY POINTS IN U.S. IMMIGRATION HISTORY
Massachusetts and New York that required bonds on arriving immigrants.
Even though the states wanted to offset the costs of processing foreign papers,
In order to understand why a defined line in immigration enforcement has the Court came to a conclusion that states were directly interfering with
not been established, I briefly explain the history of immigration enforce- international commerce. Furthermore, according to C. M. Rodríguez (2008),
ment in the United States. In this section I include an analysis of the Bracero “The doctrine of federal exclusivity began to take shape, taking off on the
Program, the Immigration and Nationality Act of 1952, the Immigration Commerce Clause grounds articulated by the plurality in the Passenger
Reform and Control Act of 1986, the Illegal Immigration Reform and Cases” (p. 612). Directly influenced by the conclusion of the Civil War and
Immigrant Responsibility Act of 1996, and the Antiterrorism and Effective the Reconstruction amendments, the federal government gained substanDeath Penalty Act of 1996. The paper will analyze what the Constitution tial power over the issues dealing with citizens and non-citizens alike.
says regarding immigration enforcement in a later section.
The federal exclusivity in immigration enforcement became official by
the late 1800s, and, as C. M. Rodríguez (2008) has argued, the foundation
The Constitutional Convention of 1787
of the current federal exclusivity principle was consolidated in Chae Chan
Ping v. United States (1889). Rodriguez contends that this case provided
In 1787, a constitutional convention was called for the purpose of amend- excellent evidence that the constitutionality of complex federal regulatory
ing the inefficient Articles of Confederation of the United States. In this schemes provided for the exclusion and deportation of Chinese laborers.
meeting, delegates from all the states, except Rhode Island, traveled to The passage of the Immigration Act in 1882 further established federal
Philadelphia to consider reforms. The delegates, however, decided to propose exclusivity over immigration policy. What this legislation solidified was
the creation of a new constitutional arrangement
the idea of federal exclusivity, which supported the
rather than amend the Articles of Confederation.
overall understanding that immigration is federal
On May 29, 1790, after Rhode Island ratified the
in nature and should therefore be enforced by the
Constitution, the new Constitution took effect and “After the passage of the Immigration
national government.
Act of 1924, Congress formally
became the law of the land in the United States.
Having increased its influence through direct
Huntington (2008) advanced the idea that any
established the Border Patrol as an
legislation and court rulings, the federal government
discussion of immigration in the Constitutional
established its “historical” call to enforce immigraagency of the United States
Convention would have implicated issues of slavery. Department of Labor.”
tion laws. By the same token, in 1891, Congress
Thus, the current debate about who should enforce
created the Superintendent of Immigration in the
immigration laws can be traced to the events that occurred during the Treasury Department whose job became to control immigration enforceConvention. James Madison was concerned that the separation between ment. When the office became the Bureau of Immigration, the federal
the southern and northern states was a great danger to the unity of the government established full control in the subject of immigration regulation.1
general government. The problematic opposition between the north and
south regions of the U.S. blocked some of the most important problems Enforcement and Legislation During the 1900s
from being discussed during the Convention. One of these problems was
the issue concerning slavery. “The institution of slavery was an incendiary During the 1900s, the federal government spent a lot of energy trying to
and divisive subject during the Constitutional Convention” (Huntington, take control of national agencies that would further support federal suprem2008, p. 812). Thus, the delegates decided to deal with the topic of slavery acy. In 1904, as a way to limit the border crossings of Chinese laborers, the
with the 3/5 compromise and avoided talking about immigration enforce- federal government sent a group of watchmen to patrol the U.S.-Mexico
ment altogether. Since “immigration was explicitly the province of state border. Two years later, the Bureau of Investigation came to be “in charge
authorities under the Articles of Confederation,” the ratified Constitution of maintaining a national catalog of fingerprints and rap sheets that local
did not establish who was the primary enforcer of immigration laws (Sul- law enforcement agencies could access” (Sullivan, 2009, p. 584). What was
livan, 2009, p. 570). It is this uncertainty and lack of textual province in initially called the Bureau of Investigation changed its name to the Federal
the Constitution that surrounds the controversy of the current immigration Bureau of Investigation (FBI) in 1935. While the FBI had jurisdiction in
enforcement debate.
federal cases, local law enforcement officials had jurisdiction in alleged
violations of state or local laws.
The First 100 Years: State and Local Domination in Immigration Efforts
After the passage of the Immigration Act of 1924, Congress formally
established the Border Patrol as an agency of the United States Department
During the first 100 years of the history of this country, states were the main of Labor. In addition to patrolling the southern border and having the
actors in immigration enforcement. The lack of a strong centralized power to make arrests, the Border Patrol was located at inspection stations.
government, even after the ratification of the new Constitution, allowed Ironically, “State and local law enforcement agency personnel filled the
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The Hinckley Journal of Politics 2013
majority of [these] new federal positions” (A. J. Rodríguez, 2008, p. 1237). government. For example, under the INA, the harboring, transporting, and
The Border Patrol was also given the task to support the Coast Guard and the reentry of immigrants after removal became criminal violations of the
work in immigration detention camps.
law. In civil matters, failing to depart after a removal hearing would be
In the 1940s, the federal government passed legislation to recruit Mexican enough to be considered for violation of civil federal laws. Overall, the INA
laborers in order to meet its labor shortage during Word War II. By admit- legally defined the difference between the civil and criminal provisions of
ting foreign workers in the U.S., the federal government declared its power immigration enforcement while also giving the task for enforcement to the
over state and local efforts in issues of controlling the flow of immigrants. federal government.
In early 1942, the Roosevelt administration negotiated a treaty between
In 1986, Congress approved the passage of the Immigration Reform
Mexico and the U.S. to allow Mexican farm workers to immigrate to the and Control Act (IRCA) to specifically regulate the employment of undocU.S. temporarily. What became known as the Bracero Program signified umented immigrants. Among the most important provisions, IRCA forced
the authority of the federal government, not the states, to establish immigra- employers to check the immigrant status of their employers, made it illegal
tion policy. The federal government reinforced national supremacy in 1951 to knowingly hire undocumented workers, granted amnesty to individuals
when Congress passed Public Law 78, which gave the Bracero Program who entered the U.S. before 1982, and gave legal status to immigrants who
permanent status.
worked in seasonal agricultural sectors. IRCA recognized the supreme
Members of the executive branch encouraged Congress to pass a plan power of the federal government in immigration enforcement while limitto invite foreigners to work in U.S. soil and to use the federal INS to super- ing the power of non-federal authorities. The primary purpose of IRCA
vise and control the number of bracero visas distributed. According to was to prevent undocumented immigrants from working and thus reduce
Massey, Durand, and Malone (2003), “During 1954 the number of migrants the attractiveness of coming to the United States. Under IRCA, states cannot
apprehended by the INS swelled to over 1 million for the first time in U.S. pass laws that enable employers to hire undocumented workers because
history [while also doubling] the number of bracero visas” (p. 37). Thus, those laws would conflict with its provisions.
the federal government left no room for states and localities to manage the
Since labor demand was the main motivation for immigrants to go to
admission and control of foreigners. The repeal of the Bracero Program in the United States, sanctioning the companies that provided jobs was to be
1964 did not restrict the federal government from continuing its control in an alternative way to discourage immigration. Speasmaker (2007) for
immigration policy. For the next decades, the national government passed example, stated, “IRCA contains employer sanctions, yet through the lanmuch legislation that made it possible for the federal government to control guage used in the bill, employers [were] generally able to circumvent the
immigration.
legislation” (p. 12). Even after specific text regarding how the hiring of
Numerous laws approved after the 1950s further reinforced the supreme undocumented workers would violate civil and criminal laws, employers
legal power of the federal government. Although key laws were passed managed to continue illegal hiring. In addition, Speasmaker (2007) argued,
before this time, the most significant were approved after the middle of the IRCA specifically preempted state and local agencies instituting employer
twentieth century. One of the most important laws was the Immigration sanctions (p. 13). IRCA increased the preemption power of the federal
and Nationality Act (INA) of 1952, also known as the McCarran-Walter government over state and local activity. In this case, IRCA imposed civil
Act. The INA, which addressed issues of immigration
and criminal sanctions upon employers who knowand citizenship, gave the federal government a legal
ingly hired or recruited undocumented immigrants.
framework to base its immigration exclusivity and
In 1996, Congress expanded the power of nonplaced a roadblock for state and local enforcement. “The INA criminalized the act of
federal governments by amending and passing the
As the new law legally forbade state involvement in
entering the United States through
Illegal Immigration Reform and Immigrant Responthe admission and removals of citizens, the federal
sibility Act (IIRIRA). Similar to the INA, IIRIRA
illegal means. It established that
government gained full power to act in those grounds. any alien in the U.S. must apply for
set “a comprehensive set of rules for legal immigraIn other words, the INA became a comprehensive
tion, naturalization, deportation, and enforcement”
their legalization of status after 30
law that recognized the federal government as the
(Seghetti, Ester, & Garcia, 2009, p. 2). The IIRIRA
days. The individuals who do not
only actor to manage the movement of non-citizens
created opportunities for state and local governments
comply with with this law would be
within its jurisdiction.
to become involved in immigration enforcement,
The Immigration and Nationality Act of 1952
guilty of a misdemeanor and
therefore weakening the federal government’s excluestablished that:
sive
jurisdiction that previous legislation had asserted.
subject to be arrested by federal
Any alien who (1) enters the United States at any
In
the
new amendments, Congress granted more
agents. ”
time or place other than as designated by immiopportunities for non-federal agencies to work
gration officers, or (2) eludes examination or inspection by immigration alongside the federal government in immigration enforcement. As the
officers, or (3) obtains entry to the [U.S.] by a willful false or misleading main actor, the federal government would allow non-federal governments
representation or the willful concealment of a material fact, shall, for to choose if they want to come into an agreement with the federal governthe first commission of any such offenses, be guilty of misdemeanor ment. Without recognizing state and local inherited power, the federal
and for a subsequent commission of any such offenses shall be guilty government managed to maintain its supremacy over immigration enforceof a felony. (Immigration and Naturalization Act of 1952)
ment while expanding, with supervision, the opportunity for other nonThe INA criminalized the act of entering the United States through illegal federal agencies to contribute voluntarily. Even though many amendments
means. It established that any alien in the U.S. must apply for their legaliza- were made to the INA, especially through the implementation of section
tion of status after 30 days. The individuals who do not comply with this 287, the IIRIRA added section 133 and section 372 to increase collaboration
law would be guilty of a misdemeanor and subject to be arrested by federal between states and the federal government in immigration enforcement.
agents. Furthermore, individuals who fail to carry their immigration papers
Section 133 of the IIRIRA amended INA section 287 (8 U.S.C. 13567(g))
at all times will be guilty of criminal misdemeanors. The INA set a defined and permitted non-federal entities to tailor an agreement with the Attorney
line regarding how a non-citizen can become a criminal to the eyes of the General to meet local obligations. This section provided an explicit
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Immigration Federalism: The Case of Immigration Enforcement by Non-Federal Agencies
Eduardo Reyes Chávez
congressional grant to non-federal agencies to choose to enforce federal
Ultimately, the 9/11 attacks forged a new collaboration between the
immigration laws through a formal written agreement. As this amendment federal government and non-federal agencies with the purpose of adminstates, the local office will have the opportunity to perform a function of a istering immigration issues. Since national security became a top U.S.
federal immigration enforcer. Since state and local entities are not allowed priority, the federal government began an unprecedented approach to
to enforce federal laws, Congress provided a legal way for local officers to centralize its enforcement agencies and utilize non-federal agencies in order
perform work as an immigration officer but not be considered as one. to expand their access to information and manpower.2 “The post-9/11 era
Jorgensen (1997) explained that the agreements “created under this section marked the birth of a new generation of interoperable databases that sit at
may grant local officers all of the powers exercised by federal immigration the crossroads of intelligence and law enforcement, reshaping immigration
officers and the section provides that the designated local officers will enjoy enforcement at the federal, state, and local levels through increased informafederal immunity” (p. 7). By enforcing federal law, local police would work tion collection and sharing” (Mittelstadt, Speaker, Meissner, & Chishti, 2011,
in the investigation, detention, and apprehension of
p. 2). For example, in 2008, the Department of
non-citizens.
Homeland Security (DHS) launched the Secure
As part of the INA, section 287 encouraged
Communities program designed to obtain custody
non-federal enforcement by formalizing state col- “The passage of the Antiterrorism
of immigration violators found in federal and nonlaboration with the federal government in immigra- and Effective Death Penalty Act
federal jails. As of 2011, ICE has convicted more
tion enforcement. In 1996, Congress approved
than 187,300 immigrants and deported more than
(AEDPA) of 1996 further expanded
section 287(g) that created a memorandum of agree- the criminal aspects of immigra86,600 non-citizens (Mittelstadt et al., 2011, p. 11).
ment that made it possible for the Attorney General
Another program includes the National Fugitive
tion offenders.”
to have a written agreement with non-federal agenOperations Program (NFLP) approved in 2003 to
cies in order to participate in immigration enforcement. The memorandum allow ICE to find and apprehend non-citizens who have violated their orders
of agreement included a training requirement for local officers that was to to leave the U.S. Federal, state, and local authorities have shared the inforbe conducted by federal immigration agents. According to Decker, Lewis, mation of inmates and arrested individuals as a way to support the efforts
Provine, and Varsanyi (2008), the amendments to section 287(g) of the INA of DHS to fight terrorism post-9/11.
made it possible for local “police officers to be trained by and to join the
Overall, the IIRIRA and the AEDPA increased state and local involvefederal government in enforcing immigration laws within the interior of ment in immigration law and policy. This so-called immigration federalism
the United States” (p. 170). Section 287 provided the legal support for states defines a growing involvement of sub-national entities and their attempt to
to enforce federal immigration laws. This voluntary action became a gateway implement law and policy relating to immigration. These changes meant
for local and state governments that wanted to enforce immigration laws.
that states and localities were allowed to enforce civil and criminal portions
The passage of the Antiterrorism and Effective Death Penalty Act of immigration law. Therefore, after 1996, it became harder to distinguish
(AEDPA) of 1996 further expanded the criminal aspects of immigration who the main enforcer of immigration law was. The federal government
offenders. In their work, Decker et al., (2008) stated that most importantly began allowing and even requesting local enforcement, which blurred the
the AEDPA “gives local police the authority to arrest previously deported lines of jurisdiction that had been so clearly set through 1986. Since both
non-citizen felons” (p. 169). In order for state and local agents to have the the federal government and non-federal actors were technically allowed to
authority to detain these individuals, the Immigration and Naturalization enforce the same laws, with special federal exclusivity, the IIRIRA and the
Service must provide appropriate confirmation for non-federal agents to AEDPA further heated the immigration enforcement debate.
make the arrest. Section 439 of the AEDPA gives state and local law enforcement the authority to detain any non-citizen who has been convicted of a
LEGAL FRAMEWORK FOR IMMIGRATION ENFORCEMENT
felony in the U.S. The criminal provisions are enforceable by non-federal
agents because the individual is considered to be present in U.S. territory In this section, I define the civil and criminal portions of immigration law.
illegally.
Since federal immigration laws are divided into civil and criminal law, the
Section 439 of the AEDPA can be used as a tool by state and local purpose of this section is to understand the complexities of these laws and
enforcement of immigration laws. Nonetheless, the authorized power exists how they complicate enforcement efforts. In the case of non-federal enforceonly when an alien commits a felony. Even with the authorization of section ment, state and local agents must be able to distinguish between civil and
439, state and local officers are not able to enforce the criminal provision criminal sections of immigration when making arrests.
“unless officers are authorized to make warrantless arrests for misdemeanors
committed outside the arresting officer’s presence” (Jorgensen, 1997, p. 10). Understanding Civil and Criminal Immigration Laws
What Jorgensen (1997) implied in his argument is that since an officer
cannot predict who has committed felonies, he/she will have to make an The difference between civil and criminal laws is part of the confusion
arrest for a less serious offence such as a misdemeanor. This practice would regarding state versus federal law. Since immigration has criminal and civil
be difficult to conduct since “it requires state and local officers to verify a provisions in its policy, scholars have put heavy emphasis on the difference
suspect’s deportation and felon status with INS before making an arrest” between these two types of laws. For instance, when an immigrant resides
(Jorgensen, 1997, p. 10). This section would be difficult to apply during an in the United States illegally, he/she is only breaking the civil section of the
ordinary traffic stop since verifying a suspect’s immigration status would INA, not the criminal portion. In cases of civil defiance, the non-citizen
take too much time and resources. Finally, section 439 has not been used would be accused of INA violation and subject to deportation or other
in an efficient manner because of the lack of appropriate communication procedures related to civil proceedings. With this in mind, any non-citizen
between the Attorney General and non-federal police. While section 439 who was admitted legally to the United States may become deportable if
expanded the level of interaction between state and federal agencies, it did his/her visa expires or his/her student status changes. Likewise, when a
not establish a sufficiently effective communication mechanism to fulfill its non-citizen is lacking legal immigration status that individual is subject to
mission.
civil proceedings. Even though an immigrant can be living in the U.S.
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The Hinckley Journal of Politics 2013
illegally, he/she would not be violating INA’s criminal entry condition. On Constitutional Convention of 1787, the differences between the northern
the other hand, criminal violations include re-entry after deportation and and southern parts of the 13 states made it impossible for the attending
failure to depart U.S. territory after a deportation or a voluntary departure. delegates to agree upon matters of slavery and immigration enforcement.
In order for those acts to be considered of criminal offense, the government I argue that, after ratification of the Constitution, the Supremacy Clause,
must prove that those acts were committed willfully. The extreme complica- Naturalization Clause, Foreign Affairs Clause, and the Commerce Clause
tions and the constant changes in immigration laws have made the federal all support federal enforcement. A lack of clarity in the Naturalization
government hesitant to give such enforcement to local and state officials Clause, and the Migration Clause, however, supports enforcement by nonwho are less likely to fully understand the guidelines. Therefore, “The civil federal agents. Thus, this section shows that the Constitution allows for an
provisions of the INA have been assumed to constitute a pervasive and argument for either federal or local authorities to control immigration
preemptive regulatory scheme” (Seghetti et al., 2009, p. 5). The complexity enforcement. The Constitution gives support to the federal government
and preemptive status has greatly limited the ability of non-federal agents and, to some extent, to non-federal players as well.
to enforce local immigration laws.
The difference between criminal law and civil law makes it very hard to The Case for Constitutional Evidence for Federal Enforcement
distinguish the borderline in the immigration field. In immigration enforcement, state and local officers are to some extent prohibited from enforcing The United States Constitution granted the federal government primary
civil violations of the law and instead only enforce the criminal aspect of powers to enforce immigration laws. Article I, Section 8, established
the law. “State officers do not have the authority to arrest an individual for Congress with the power to defend the general welfare of the United States,
illegal presence, a civil violation of immigration law, [although] they argu- to regulate commerce with foreign nations, establish naturalization laws,
ably could arrest an individual whom they actually witness enter the country and to pass all laws that are necessary and proper. Since Article I details
at an unauthorized location, a criminal violation” (A. J. Rodríguez, 2008, p. the responsibilities and the powers of the legislative branch, it grants the
1256). This example illustrates the complexity of immigrations laws. In power to create immigration laws to Congress. Since legislative actions are
that example, the main difference was the distance of the undocumented federal, the constitutional power given to Congress is also given to the
immigrant from the physical border. For this purpose, McKenzie (2004) federal government. Thus, Article I supports federal enforcement through
argued that when making an arrest, non-federal enforcement agencies the work of Congress.
would have a difficult time distinguishing between criminal and civil laws.
Even if the INA permits local and state officers to enforce criminal provisions,
1. The Supremacy Clause
they still have to be cautious not to overstep those legal lines.
In the case of Gonzales v. City of Peoria (1983), the Ninth Circuit clari- In the U.S. Constitution, the Supremacy Clause has supported the historical
fied the difference between criminal and civil law. Jorgensen (1997) restated power of the federal government to enforce immigration laws. The U.S.
this idea when he discovered: “The Ninth Circuit also emphasized that Constitution explicitly states that “the Laws of the United States…shall be
although state law authorized the Peoria police to enforce the INA’s provi- the supreme Law of the Land…any Thing in the Constitution or Laws of
sions, it did not authorize them to enforce the INA’s
any State to the Contrary notwithstanding.” The
civil statutes” (p. 5). The Ninth Circuit made it clear
Supremacy Clause gives the federal government
that the failure to have proper documentation does
authority to preempt any state action that interferes
“The difference between criminal
not mean that an immigrant is in violation of the
with a federal mandate. By establishing the Constilaw and civil law makes it very hard
criminal section of the INA. Otherwise, the court
tution as the supreme law of the land, the Constituto distinguish the borderline in the
insisted that “in implementing the arrest authority
tion mandates that non-federal entities must follow
granted by state law, local police must be able to
federal law in cases where a conflict arises. Considimmigration field. In immigration
distinguish between criminal and civil violations
ering the fact that states provided the central governenforcement, state and local
and the evidence pertinent to each” (Jorgensen,
ment with supreme power when the Constitution
officers are to some extent prohib1997, p. 5). What the court tried to show was the
was created in 1787, the federal government was
ited from enforcing civil violations
possibility that states and localities might overstep
formed with entitlement over issues that deal with
of
the law and instead only enforce
their enforcement powers and interfere with civil
broader affairs such as commerce and international
the criminal aspect of the law.”
provisions, a section normally left to the federal
issues. Hence, scholars have looked at the Supremgovernment. In Gonzales, the Ninth Circuit deteracy Clause and concluded that it gives primary power
mined that the illegal entry offense is not a continuous offense because it to the federal government to deal with immigration matters. When a state
was only done at the time that immigrants cross the border. Not only this, approves a law that provides local police with extreme powers to enforce
but the offense must be committed at the borderline at the presence of an immigration laws, which in most cases deal with civil laws, the federal
officer. In order to legally engage in criminal enforcement, the state and government has historically received supreme power to preempt those state
local police agencies must have a memorandum of agreement with the actions. According to Huntington (2008), the Supremacy Clause authorizes
federal government. When state or local governments get involved in the national government to preempt non-federal conduct. Another scholar,
regulating the entry, stay, residency, and the deportation, they get involved Boatright (2006), argued that “even if states have constitutional authority
in civil regulation and therefore those activities would be limited by the to enforce immigration law, federal law preempts inconsistent state law
powers of the federal government.
under the Supremacy Clause where concurrent jurisdiction exists” (p. 1655).
THE CONSTITUTIONALITY OF IMMIGRATION ENFORCEMENT
This section will analyze the U.S. Constitution to look for evidence of federal
preemption and supremacy on immigration matters. Beginning with the
2. The “Uniform Rule of Naturalization” Clause
The Constitution of the United States produced a mechanism for the new
country to work with uniformity and organization. In Article I, Section 8,
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Eduardo Reyes Chávez
Clause 4, the Constitution gave Congress the right “to establish an uniform
4. The Commerce Clause
Rule of Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States.” Naturalization in the United States established Supporters of federal exclusivity have constantly used the Commerce Clause
laws that control citizenship, foreign visitors, and ways to live and work in to show that the U.S. Constitution grants the federal government the right
the country. In other words, naturalization is also related to the immigra- to enforce immigration laws. Article I, Section 8, Clause 3 of the Constitution field. In the field of the naturalization of nontion reads that Congress has the power “to regulate
citizens, Sullivan (2009) argued that the U.S. ConCommerce with foreign Nations, and among the
stitution gives the federal government power to
several States.” In other words, the federal governregulate over these issues. Furthermore, Sullivan “It is impossible to talk about
ment maintains supremacy over international comimmigration and not mention its
(2009) also made the argument that commerce is
merce as well as over interstate commerce, especially
connected to the immigration area. Thus, the move- implication regarding foreign
when states become involved in commercial activity
ment of individuals and workers may affect com- affairs.”
that does not support the interest of the nation. After
merce and the interests of the national government
the 1890s, federal exclusivity began to take shape
as well. For this reason, if states and localities affect the naturalization on the grounds of the Commerce Clause and further articulated by the
process of immigrants, they will violate the constitutional mandate given famous Passenger Cases (C. M. Rodríguez, 2008). Interstate commerce,
to the federal government.
international commerce, and trading may connect states with international
In Article I, the federal government receives most of its power to partners. Since commerce also includes the movement of labor and other
conduct issues of national uniformity and naturalization laws. In the area factors, it is parallel to the immigration field. C. M. Rodríguez (2008)
of naturalization, the government has passed laws such as the Immigration explained, “The dormant Commerce Clause doctrines [support]…interstate
Naturalization Act to manage how non-citizens can lose or obtain certain commerce from certain burdens imposed by state regulation” (pp. 638-639).
rights, such as the opportunity to become U.S. citizens. The “uniform Rule In order to protect and make interstate commerce possible, the Commerce
of Naturalization” also establishes that “only Congress may enact laws Clause gives power to the federal government to facilitate interstate compertaining to admission into the United States” (McKenzie, 2004, p. 2). The merce and avoid international conflicts.
powers of admission and removal, therefore, belong only to the federal
government. The “uniform Rule of Naturalization” clause has further Court Rulings Cases Supporting Federal Exclusivity
provided federal support in immigration enforcement as well as the administration of the admission and removal of non-citizens.
There have been many court cases that have ruled in favor of immigration
enforcement by the federal government. Mainly focusing on the admission
3. The Foreign Affairs Clause
and removal of foreigners, the U.S. Supreme Court has made a constant
push to provide such power to the federal government. “The Supreme
It is impossible to talk about immigration and not mention its implication Court has stated that ‘the authority to control immigration—to admit or
regarding foreign affairs. For instance, the treatment of foreign citizens exclude aliens—is vested solely in the Federal Government’” (Jorgensen,
automatically entails their foreign government and their constitutional 1997, p. 1). The delicacy of dealing with foreign nationals has been one of
rights. It is in no surprise that a government, in this case the U.S. govern- the main elements used by the courts to express their agreement with federal
ment, worries about leaving the subject of international affairs to 50 differ- enforcement. Just like scholars looking at the U.S. Constitution, scholars
ent states. For example, “The Supreme Court has repeatedly stated that who have deeply analyzed the Supreme Court rulings have also favored
treatment of one country’s citizens in another country is a component of federal exclusivity on the grounds of uniformity.
foreign affairs and that conflicts between nations may arise as a result of
The Supreme Court has recognized that immigration enforcement
wrongs committed against those individuals” (A. J. Rodríguez, 2008, p. belongs to the national government. “The Supreme Court ‘began denying
1258). The complexity of having 50 different immigration policies multiplies powers of immigration regulation to the states’ during the 19th century ‘in
the risk of falling into conflicts with other nations.
part because their actions were visibly abusing those powers’” (Kalhan, 2007,
When sub-national entities create their own immigration laws, the pp. 6-7). This statement takes us back to the issue that when all states have
interests of the entire nation become attached to those laws as well. Hunt- the power to regulate an international matter, their actions are very likely
ington (2008) agreed and stated that sub-national “governments cannot to differ and cause international tension. In the same way, early cases
exercise immigration authority because to do so necessarily implicates asserted federal exclusivity because of the concern of interaction with the
national interests” (p. 813). In order to deal with such implications, many international community (A. J. Rodríguez, 2008). Therefore, although state
scholars have asked for uniformity to reduce the ambiguity in immigration and local entities deal with foreign nationals in a daily basis, it should be
enforcement. A. J. Rodríguez (2008) further argued that non-federal the job of the national government to pass legislation in that matter.
enforcement complicates uniformity and the legitimacy of the United States
in foreign affairs. When a country approves numerous laws by more than
1. Chy Lung v. Freeman (1875)
one governing body, the international community may become confused
about who governs or what laws to obey. Further, Boatright (2006) stated The issue in this case was based on principles of federalism and federal
that when an individual state acts with its own reason, the state has the supreme power to limit state power. Chy Lung represented a case that served
power to embroil the U.S. in international conflicts. Similarly, Sullivan as a model for other cases to understand the Supreme Court’s view on
(2009) added that the possibility of federal preemption is especially relevant immigration enforcement. When Chinese nationals such as Chy Lung
in this area since it influences international relations and other areas of arrived in San Francisco, the state of California required them to pay a bond
national concern.
of $500. In Chy Lung, the Court found California’s laws inconsistent with
the federal powers. The Supreme Court held the state law unconstitutional
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The Hinckley Journal of Politics because only Congress had the power to enact legislation that affected the
admission of foreigners. The California law intervened with foreign commerce and foreign relations that resulted in unauthorized activity in an area
normally reserved for the federal government. “The Supreme Court
expressed concern that mistreatment of non-U.S. citizens by state officials
might antagonize foreign governments and render the federal government
liable for claims arising from such mistreatment” (Kalhan, 2007, p. 7). The
power to deal with foreigners at an international border was reserved for
the federal government, not the state of California. The statute could
therefore inflict the U.S. in an international conflict.
2013
open to all parties. Since the Constitution does not mention in text that
local institutions are prohibited from enforcing them, Jorgensen (1997)
argued, it also means that they are allowed to enforce immigration laws.
1. Gonzales v. City of Peoria (1983)
Gonzales gives the opportunity to explore non-federal enforcement and
also to understand the risks of enforcement by states and localities. Aside
from risks of preemption, cases such as Gonzales provide information
regarding racial profiling and situations where non-federal agents have
enforced federal immigration laws. In Gonzales, 11 Mexican individuals
2. The Passenger Cases (1842)
sued the City of Peoria, Arizona, for an unlawful traffic stop by the local
police. The plaintiffs claimed the police stop was questionable and disThe Passenger Cases included the combination of two similar cases, Smith criminated against them based on their appearance. The plaintiffs of Mexican
v. Turner and Norris v. Boston. These cases were important because they ancestry affirmed that the police officers were in the practice of arresting
established standards for states to follow in order to comply with federal individuals who violated federal immigration laws. Thus, the plaintiffs sued
regulations on treatment of non-citizens. The Pasthe City of Peoria for allowing its police force to
senger Cases of 1842 constitute a series of laws in
enforce federal immigration laws that were not supMassachusetts and New York that levied fees on
posed to be within their jurisdiction. In addition,
“The Supreme Court has looked
arriving foreign passengers. With the intentions to
the plaintiffs claimed that the stop was not based on
into the Constitution and found
offset the cost of caring for foreign papers, these two
them violating a law, but on physical characteristics.
that there is still an opening for
states acted unilaterally and acted as the national
For this reason, the Ninth Circuit court examined
sub-national governments to
government. The actions taken by Massachusetts
the criminal entry provision of the INA to analyze
and New York compromised international commerce
the legality of the arrest of the undocumented immiparticipate in the enforcement
and violated this federal-centered constitutional
grants.
process.”
responsibility. The responsibility of the federal govOne of the main questions regarding the arrest
ernment to control the area of foreign commerce implied the total exclusion of the plaintiffs dealt with the applicability of probable cause. Did the local
of state authority in the area.
police officers have probable cause when they arrested the undocumented
The Supreme Court responded to the Massachusetts and New York laws immigrants in the City of Peoria? During the analysis of the Ninth Circuit,
by striking them down as unconstitutional. The Supreme Court’s decision the court held that “local police officers may, subject to state law, constituestablished that the imposition of taxes by a state on foreign commerce tionally stop or detain individuals when there is reasonable suspicion or, in
violated the Constitution. According to A. J. Rodríguez (2008), “The Court the case of arrests, probable cause that such persons have violated, or are
recognized the importance of the national government speaking with one violating, the criminal provisions of the INA” (Seghetti et al., 2009, p. 8).
voice in instances that ‘take into view our relations with other countries’”
Therefore, the court ought to consider if state law gives power to the
(p. 1232). In this case, the Court was concerned with uniformity when local police to enforce these regulations. The City of Peoria approved laws
relationships with foreign nationals are at stake. The one-voice argument that allowed local officers to arrest undocumented entrants who were in
persisted in the minds of the Supreme Court members during the decision violation of the criminal provision of the INA. However, even with authoof these series of cases. The issue of foreign commerce restricted the states’ rization from the state to enforce federal laws, the local police must also
rights to regulate immigration. A. J. Rodríguez (2008) explained that the establish probable cause when making an arrest. In Gonzales, probable
Court’s agreement to federal exclusivity extended preemption on immigra- cause could not be established because “to believe that an alien has violated
tion matters and gave this right to the federal government. Federal preemp- the INA’s criminal entry provision…lack of documentation may serve as a
tion and the issue of constitutionality convinced the Supreme Court to stop basis for reasonable suspicion and further questions of a suspect” (Jorgensen,
the states from enforcing commerce-related laws that impacted the circula- 1997, p. 12). In other words, reasonable suspicion is not evidence enough
tion of foreign nationals. The Passenger Cases set the federal government to detain individuals such as the plaintiffs unless they can satisfy the requireto regulate the area of immigration laws that affect foreign nationals.
ments to have probable cause. The conclusion of the court focused on the
civil provision of the INA. By the same token, the Ninth Circuit “held that
Cases Supporting State and Local Enforcement
the Peoria police department could not enforce the civil offense of illegal
presence” based on civil provisions and the Arizona state law (Jorgensen,
The Supreme Court has looked at the Constitution and found that there is 1997, p. 12).
still an opening for sub-national governments to participate in the enforcement process (Kalhan, 2007). There are many laws that recognize immigra2. De Canas v. Bica (1976)
tion federalism. Jorgensen (1997) found that “Congress had specifically
authorized local enforcement of 8 U.S.C. [Section] 1324(c)” (p. 4). Since The De Canas case presented an argument for states and localities to justify
this law criminalizes the transportation and harboring of undocumented their involvement in enforcing federal law. Since employment is one of the
immigrants, Congress recognized the need to use the local resources avail- driving forces for undocumented immigration, this case helps understand
able. Likewise, “Congress’s silence about local enforcement of the INA’s current enforcement efforts by state and local governments. In this case,
criminal entry provision displayed an intent to withhold local enforcement the Supreme Court was given the task to decide if local officers can enforce
authority” (Jorgensen, 1997, p. 4). What this means is that if an institution unlawful hiring of undocumented workers in a field that belongs to the
does not mention who should enforce those laws, then the enforcement is federal government. Section 2805(a) of the California Labor Code established
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Immigration Federalism: The Case of Immigration Enforcement by Non-Federal Agencies
that “no employer shall knowingly employ an alien who is not entitled to
lawful residence in the United States if such employment would have an
adverse effect on lawful resident workers.” In particular, the Court tried to
answer if section 2805(a) was unconstitutional based on its attempt to
regulate immigration and if the Supremacy Clause preempts it.
While employment of immigrants is found in the areas of immigration
regulation and naturalization, mere employment regulation does not constitute enough activity to preempt such action by the federal government.
According to the Supreme Court, the spectrum of immigration has some
space for states and localities to enforce as well. In this case, the enforcement
was based on employment practices that covered workers who were not
authorized to work in the United States. Jorgensen (1997) argued that the
INA only intended to give the federal government power to “regulate the
‘conditions of admission to the country and the subsequent treatment of
aliens lawfully in the country’” (p. 3). Once again, the federal exclusivity
can be seen in this case, but the sub-national entities are still able to participate as well. In his argument Jorgensen (1997) made clear that subnational regulation was actually expected “in light of its complicated subject
matter and since the INA’s purpose is only to regulate the admission of
aliens and the treatment of lawful immigrants” (p. 4). In matters of federal
preemption, De Canas made it clear that in this case the state was not
preempted from charging employers for hiring undocumented workers.
After a detailed analysis of the INA, the Supreme Court was not able to find
any explicit statutory language that showed a congressional intent to preempt
states from enforcing these laws. There is space for legal prerogative, and,
as we will see, policy initiation at the local level.
GOOD REASONS FOR STATE AND LOCAL ENFORCEMENT?
Eduardo Reyes Chávez
agents have argued that state and local participation will enhance national
security and add more manpower to the more than 2,000 federal immigration agents (McKenzie 2004). Specifically, the participation of non-federal
agents would benefit immigration enforcement due to their constant contact
with the general public. Not only are state and local policemen most likely
to get in contact with criminals, but they are also more likely to have the
personnel to respond to violations of immigration law. For example, local
police encountered three of the terrorists who participated in the 9/11
attacks. Likewise, Boatright (2006) added that since state and local police
represent approximately 95% of the U.S. law enforcement, these officers
would cover a lot more ground and support the severely understaffed ICE.
The advantage of using state and local enforcement officers as counterterrorism tool is important “because, during the course of daily duties, [nonfederal agents] may encounter foreign national criminals and immigration
violators who pose a threat to national security or public safety” (Stana,
2009, p. 1).
OVERSTEPPING BY STATE AND LOCAL GOVERNMENTS
Up to this point, I have argued that the Constitution and some court cases do
allow states and localities to enforce immigration laws with some significant
prohibitions against enforcing civil provisions. In this section, I shift from legal
arguments to practical ones. My argument will be based on evidence that shows
how non-federal enforcement alienates immigrant communities and creates
unnecessary enforcement spending, and how non-federal agents attempting
to enforce immigration laws are likely to violate the constitutional rights of
minorities because of their lack of expertise.
Local Police Enforcement and the Alienation of the Immigrant
Although the federal government has achieved supremacy over immigration Community
enforcement, it has failed to effectively enforce immigration laws. States
and localities have perceived the need to get involved in immigration When state and local police enforce immigration laws, the relationship
enforcement due to the federal government’s failure to do so. According between them and their respective communities can be jeopardized. When
to Ellis (2004), the ineffectiveness has been caused by “a lack of direct U.S. the community fears the local police force, the level of trust and cooperation
government responsibility for the social costs of
is seriously undermined. In the case of undocuimmigration because social policy is devolved to
mented immigrants, they are less likely to come
the states, and [because of] the conjunction of a
forward and report crimes due to the possibility of
national ideology that [favors] unregulated markets “Although the federal government
deportation. When the community does not coophas achieved supremacy over
as well as vigorously supporting individual civil
erate with the local police, the ability for the police
liberties” (p. 52). Since undocumented immigrants
immigration enforcement, it has
force to effectively perform their duties is destabilized.
impact (negatively and positively) local labor force, failed to effectively enforce immiMost immigrants would be discouraged to particisocial programs, schools, civic organizations and
pate with the local police either because of fear of
gration laws. States and localities
many other social forums, non-federal lawmakers
deportation or distrust. Thus, a great number of
have perceived the need to get
have shown frustration for the lack of effective federal
prospective witnesses of crime would not be willing
involved
in immigration enforceenforcement. The dilemma faced by non-federal
to cooperate, decreasing the chances of a case being
ment due to the federal governgovernments is that “states and localities have no
solved. For instance, “Many...immigration groups
control over who enters or exits but bear a consider- ment’s failure to do so.”
that may be vulnerable to high rates of victimization
able degree of responsibility, some of it mandated
come from countries where distrust of authorities”
by federal law, for all who are resident” (Ellis, 2004, pp. 52-53). In addition, is common (Decker et al., 2008, p. 170). So, when local residents perceive
states and localities have shown dissatisfaction with ICE given that it has their local officers to have business with federal immigration officers, they
historically refused to take custody of undocumented immigrants citing a would be reluctant to participate due to fear and lack of trust.
lack of resources and detention space (Boatright, 2006). All these cases
have encouraged non-federal agents to increase their immigration enforce- Local Police Lack of Immigration Expertise
ment efforts and put pressure on the federal government to pass a comprehensive immigration reform.
In the United States, as it is the case in most countries, the immigration
The participation of state and local governments would increase the system is complicated and hard to understand, even to officers who are
number of available resources as well as provide the federal government trained to enforce those laws. Boatright (2006) argued, “The immigration
with needed manpower to enforce immigration laws. Since national secu- code is complex, arguably too complex for state and local police to enforce
rity became a top priority to the United States post-9/11, some non-federal without a high degree of training and expertise” (p. 1648). In particular,
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The Hinckley Journal of Politics 2013
in a field where even professionals make mistakes, scholars seem to be without expertise in enforcement of immigration, local and state enforcers
skeptical regarding less knowledgeable agents enforcing these types of laws. might end up violating the civil rights of individuals especially to racially
The concerns many institutions and social groups have about non-federal identified residents.
agents enforcing these complex laws are widespread. The uncertainly and
likelihood of making mistakes greatly increases when local agents enforce Racial Profiling
immigration laws, an activity that can easily result in overstepping and even
preemption by the federal government.
Opponents of state and local enforcement have been concerned about racial
Decker et al. (2008) are mainly concerned about the “expanding universe profiling, a violation of the Fourth Amendment and the Fourteenth Amendof crimes” that the immigration field covers. As more complex categories ment.3 “Under the current interpretation of the Equal Protection Clause…
are added to immigration enforcement (terrorism, hate crimes, human the Supreme Court has made it clear in recent years that all racial classificatrafficking, gangs, and electronic crimes), the local
tions are constitutionally suspect” (Johnson, 2001,
and state police would require a lot more advanced
p. 23). Nonetheless, in 1975, the Supreme Court
resources and training in order to understand
classified Mexican appearance as a legitimate reason
the already complex system. For instance, this “Another concern regarding
for making an immigration stop.4 Making race a
continuous expansion will also be subject to higher- sub-national agencies enforcing
reasonable classification to stop an individual can
than-usual uncertainty that can result in controver- federal immigration laws is that
easily undermine the Equal Protection Clause and
sial legal issues once their errors are found. When
result in violations of constitutional rights. “Latino
their insufficient training in federal
state and local police engage in activities outside
residents experienced racial affronts targeted at their
immigration laws leaves them
their traditional policing responsibilities, the likeliMexicanness indicated by skin-color, bilingual speakvulnerable to violate constitutional
hood of committing unconstitutional activities, racial
ing abilities, or shopping in neighborhoods highly
rights of non-citizens.”
profiling, and inefficient ways of using local resources
populated by Latinos” (Romero, 2006, p. 448). When
are greatly increased. Most rational law enforcers
the complexity of immigration laws are added to
would not want to overstep their given legal boundaries, however, in the factors of racial profiling, the provability of a constitutional rights violation
complex immigration field the understanding and interpretation of the laws is more likely to occur. The International Association of Chiefs of Police
might result in a violation even if that was not initially intended.
expressed the concern that probable cause in immigration law is much
harder to be discerned by non-federal agents. A DHS’s Office of Inspector
Violation of Civil Rights and Liberties
General (OIG) report concluded that “287(g) training does not fully prepare
officers for immigration enforcement duties,” highlighting their inadequate
Another concern regarding sub-national agencies enforcing federal immi- training on civil rights and on the Fourth Amendment. As a result, the lack
gration laws is that their insufficient training in federal immigration laws of adequate training for non-federal agents and the ability for them to use
leaves them vulnerable to violate constitutional rights of non-citizens. “State Mexican appearance as a legitimate reason to stop a person means that they
and local governments must seriously consider the risks of local immigra- are more likely to commit constitutional violations than ICE agents.
tion enforcement and must be prepared to dedicate the resources necessary
to prevent civil rights violations before implementing any immigration Unnecessary Local and State Spending to Enforce Federal Laws
enforcement plan” (Jorgensen, 1997, p. 13).
Individuals who violate civil rights are committing unconstitutional After the “great recession” of 2008, economic efficiency and strategic spendacts. The Fifth Amendment to the U.S. Constitution states, “No person ing became major concerns for governments across the world. Since
shall…be deprived of life, liberty, or property, without the due process of resources have become scarce, enforcement agencies have looked at all types
law.” The Fifth Amendment, which applies to all individuals regardless of of ways to save money and continue their enforcement efforts. To compenimmigration status, forces all officers to respect its legal power. Similarly, sate for local expenses, the federal government established the State
the Fourteenth Amendment protects all individuals from the power of states Criminal Alien Assistance Program (SCAAP). SCAAP has provided funding
to deny “any person within its jurisdiction the equal protection of the laws.” for states that participate in the incarceration of undocumented criminal
The Equal Protection Clause has been one of the main clauses utilized by immigrants who committed a felony or at least two misdemeanors. After
civil rights advocates who have recognized a differential treatment to specific entering into a contractual program, the participants would be compensated
groups.
with an average cost determined by the Attorney General.
Some of the most recent legislation that protects against discrimination
ICE can reimburse law enforcement agencies for (1) detention of incaris Title VI of the Civil Rights Act of 1964, which prohibits discrimination
cerated aliens in local facilities who are awaiting processing by ICE upon
on grounds of race. Previously, the Civil Rights Act of 1871 provided
completion of their sentences and (2) transportation of incarcerated
monetary damages as a remedy for harm caused by deprivation of federal
aliens, upon completion of their sentences, from a jurisdiction’s facilities
constitutional rights by state and local government agents. Likewise, the
to a facility or location designated by ICE. (United States Government
Violent Crime and Control and Law Enforcement Act of 1994 authorized
Accountability Office, 2009, p. 8)
the Department of Justice to bring legal actions against any police agency Still, the funding provided by the ICE and the SCAAP programs are too
engaged in unconstitutional actions. The civil actions were intended to small to help with the enforcement cost. The research conducted by Booth
target those illegal actions for equitable and declamatory relief (Seghetti et (2006) determined that SCAAP provided less than 5% of the annual budget
al., 2009, p. 20).
allocations for those programs. What was even more surprising is that
Since police officers stop individuals on a day-to-day basis, as they focus average federal aid was about 0.6% of the states’ annual budget and only
on identifying their immigration status they might well end up discriminat- provided less than 1% of total expenditures in 39 states (Booth, 2006).
ing against that individual. Many laws are already established to punish
those types of activities, even against states and local governments. Thus,
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Immigration Federalism: The Case of Immigration Enforcement by Non-Federal Agencies
Eduardo Reyes Chávez
CONCLUSION
As states and localities engage in immigration enforcement, the possibility of federal preemption is likely to increase as well. Thus, investing
There are significant reasons why immigration enforcement, especially in enormous amounts of time, money, and energy in immigration enforcement
the criminal realm, is squarely located in federal jurisdiction. The preemp- might not be the best choice for local enforcers. Since Congress can at any
tion seen in the Constitution can also be recognized in cases where Congress time pass legislation that influences immigration enforcement, local enforceintended to give enforcement rights to the federal government. In the field ment is not stable and is likely to change in any given session. Whenever
of immigration enforcement, federal preemption exists “when a state entity a local law conflicts with federal mandate, the national government will
regulates ‘in a field that Congress intended the federal government to occupy most likely interfere in order to maintain its power. In recent times, subexclusively’” (Seghetti et al., 2009, p. 4). For example, the federal government national governments have been granted with extensive flexibility to enforce
has the power to control federal laws and resulting programs such as the criminal and civil immigration laws. The complexity of immigration laws
INA, IRCA, and the Bracero Program. Since Congress intended to occupy is likely to result in federal preemption, community isolation, and unnecesthe field of immigration enforcement, any sub-national activity can be sary spending in a field where the federal government holds the last word
preempted. And, since Congress occupies the legislative field, the depth in immigration enforcement.
and breadth of congressional action can restrict sub-national enforcement
The easiest and most effective way to solve the confusion in immigration
if intended to. In cases of field preemption, the federal government main- enforcement would be to pass a comprehensive immigration reform where
tains absolute regulatory scheme to completely limit enforcement activity the federal government receives full authority over the criminal and civil
for states/localities (McKenzie, 2004). Intentional federal exclusivity results portions of immigration law. Since the number of undocumented immiin cases of field preemption intended by Congress.
grants continues to rise, the alternative cannot be a complete ignorance of
In short, implications of federal preemption serve as a roadblock that immigration enforcement. Instead, the federal government should become
may encompass state attempts to make and enforce immigration law and the only enforcer of immigration laws and give an end to programs such
policy. Understanding that Congress has express explicit statutory language as 287(g) that involve non-federal agents. The federal government should
that provides the federal government with clear textual evidence that makes dramatically increase the number of federal immigration agents as well as
immigration enforcement a federal issue, federal preemption has the power increase its annual budget in order to cover those costs. With more resources
to stop non-federal enforcement. Likewise, Congress has blurred the lines and manpower, the federal government would increase the number of
of immigration enforcement by intending immigration law to belong to the apprehensions, detentions, and deportations of undocumented immigrants
federal government. In other words, congressional actions symbolize a whom they consider to be of great threat to national security. To maximize
present risk to states and localities that would like to participate in enforc- their available resources, the federal government should focus on finding
ing immigration laws.
only non-citizens who are committing serious crimes or multiple felonies.
By enforcing immigration laws, state and local governments jeopardize In this program, the federal government would continue to have personnel
overstepping and violating constitutional rights of non-citizens. In addition, on the entire international border; however, most of their energy would be
their enforcement also breeds alienation between the community and the focus on going after incarcerated immigrants and those involved in acts of
local authorities. In a country where local community collaboration is terrorism and drug trafficking.
essential to combat local crime, alienation from the local police can result
This approach would allow states and localities to focus more on fightin an increased percentage of crime rates. Not only
ing local crimes and use their limited resources
that, since immigration is a very complex field, state
to work closely with the community in order to
and local officers sometimes do not receive enough
fight crimes more effectively. This would allow all
training to truly understand immigration laws, espe- “The easiest and most effective way
individuals to participate in the apprehension of
to solve the confusion in immigracially criminal and civil laws. In many cases, this
criminals without having to worry about their own
lack of understanding these laws has resulted in
tion enforcement would be to pass
deportation when exposing their immigration status.
violation of civil rights and racial profiling. In a time
In order to ease the cost associated with immigrant
a comprehensive immigration
when money is not as available as it used to be, state
influx (e.g., schools, prisons, or social services), the
reform where the federal governand local agencies should use their resources wisely
federal government would create a reimbursement
ment receives full authority over
and only engage in law enforcement that falls under
program, such as SCAAP, with the mission to provide
the
criminal and civil portions of
the local jurisdiction. Even though in some case
a percentage of expenses to non-federal governments.
the law.”
enforcing immigration laws can serve as a security
The higher efficiency by the federal government will
measure, those laws are federal laws and should
relax tensions between the federal government and
therefore be enforced by the federal government. Instead, the local officers non-federal entities as well as allocate enforcement resources to the hands
should focus in building bridges among cultures and strengthening their of better-trained federal agents. In this alternative, non-federal agents will
connection with the entire community.
not be subject to federal preemption, which will dramatically decrease the
Even though the United States Constitution does not specify who is entitled likelihood of violating constitutional rights of non-citizens. The only
to enforce immigration law, the federal government has established itself as the participation states and localities would have will be providing the federal
exclusive enforcer through congressional legislation and recognition by Supreme government with information regarding the criminals who have a strong
Court rulings. State and local governments may voluntarily come into written history of unlawful activity.
agreements with the federal government to enforce criminal and, to some extent,
civil provisions of the U.S. immigration law but they are still restricted to federal
preemption. Therefore, states and localities should not engage in immigration
enforcement since the likelihood of overstepping their legal boundaries may
occur due to the lack of expertise and the risk of violating civil rights and civil
liberties of racial minorities.
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The Hinckley Journal of Politics ENDNOTES
1.
The Bureau of Immigration is the precursor to the Immigration and
Naturalization Service (INS) that would ultimately become the current
Immigration and Customs Enforcement (ICE).
2.
The Border Patrol, which during that time was under the supervision
of the INS, came under the umbrella of the newly formed Department
of Homeland Security (DHS) (C. M. Rodríguez, 2008). The DHS
was established on March 1, 2003, to replace the Department of
Immigration Services. Similarly, the former INS was divided into three
different sections within the Department of Homeland Security. The
United States Citizenship and Immigration Services (USCIS) became
responsible for providing most of the services and benefits for immigrants. The second component became the Bureau of Immigration
and Customs Enforcement (ICE) in charge of enforcing immigration.
Finally, the third section became the Bureau of Customs and Border
Protection (CBP). The third bureau became responsible for protecting
the borders of the United States. These federal entities served as parts
of the national body of government and as a symbol of federal supremacy in enforcement efforts.
3.
4.
Racial profiling is defined as the practice of targeting individuals based
on their race or ethnicity in the belief that minority groups are more
likely to engage in unlawful behavior or be present in the United States
illegally (Seghetti et al., 2009).
See United States v. Brignoni-Ponce. (1975). 422 U.S. 873-87.
REFERENCES
Boatright, L. R. (2006). “Clear eye for the state guy”: Clarifying authority and
trusting federalism to increase nonfederal assistance with immigration
enforcement. Texas Law Review, 84(6), 1633-1674.
Booth, D. (2006). Federalism on ice: State and local enforcement of federal
immigration law. Harvard Journal of Law & Public Policy, 29(3), 1063-1083.
Decker, S. H., Lewis, P. G., Provine, D. M., & Varsanyi, M. W. (2009). Appendix G:
Immigration and local policing: Results from a national survey of law
enforcement executives. In A. Khashu, Striking a balance between immigration enforcement and civil liberties, (pp. 169-179). Washington, DC: Police
Foundation.
Decker, S. H., Lewis, P. G., Provine, D. M., & Varsanyi, M. W. (2009). On the
frontier of local law enforcement: Local police and federal immigration law.
In W. F. Mcdonald (Ed.) Sociology Of Crime, Law and Deviance: Vol. 13:
Immigration, Crime and Justice, (pp. 261-276). Bingle, UK: Emerald Group
Publishing.
Ellis, M. (2006). Unsettling immigrant geographies: U.S. immigration and the
politics of scale. Tijdschrift Voor Economische En Sociale Geografie [Journal
Of Economic & Social Geography], 97(1), 49-58.
Huntington, C. (2008). The constitutional dimension of immigration federalism.
Vanderbilt Law Review, 61(3), 785-853.
2013
Iguina, C. (2011). Adapting to 287(g) enforcement: Rethinking suppression and
termination doctrines in removal proceedings in light of state and local
enforcement of immigration law. New York University Law Review, 86(1),
207-241.
Immigration and Naturalization Act of 1952. (1952). Public Law 82-414, 66 Stat.
163.
Johnson, K. R. (2001). Race profiling in immigration enforcement. Human Rights,
28(1), 23-24.
Jorgensen, J. T. (1997). The practical power of state and local governments to
enforce federal immigration laws. Brigham Young University Law Review,
1997(4), 899-942.
Kalhan, A. (2007). Immigration enforcement and federalism after September 11,
2001. Unpublished working paper. Matthew B. Ridgway Center, University
of Pittsburgh.
Massey, D. S., Durand, J., & Malone, N. J. (2003). Beyond smoke and mirrors:
Mexican immigration in an era of economic integration. New York: Russell
Sage Foundation.
McKenzie, A. (2004). A nation of immigrants or a nation of suspects? State and
local enforcement of federal immigration laws since 9/11. Alabama Law
Review, 55, 1149-1165.
Mittelstadt, M., Speaker, B., Messner, D., & Chrishti M. (2011). Through the prism
of national security: Major Immigration policy and program changes in the
decade since 9/11. Washington, DC: Migration Policy Institute.
Office of Inspector General. (2010). The Performance of 287(g) Agreements
(OIG-10-63). Washington, DC: U.S. Department of Homeland Security.
Rodríguez, A. J. (2008). Putting on the values of federalism in the immigration
arena? Valuating operation linebacker, a state and local law enforcement
program along the U.S.-Mexico border. Columbia Law Review, 106(5),
1226-1267.
Rodríguez, C. M. (2008). The significance of the local in immigration regulation.
Michigan Law Review, 106(4), 567-642.
Romero, M. (2006). Racial profiling and immigration law enforcement: Rounding
up of usual suspects in the latino community. Critical Sociology, 32(2/3),
447-473.
Seghetti, L. M., Ester, K., & Garcia, M. (2009). Enforcing immigration law: The
role of state and local law enforcement. Journal Of Current Issues In Crime,
Law & Law Enforcement, 2(1), 41-73.
Speasmaker, L. (2007). Challenges to federal immigration regulations: The
possible consequences of state imposed employer sanctions. Unpublished
manuscript. Retrieved from http://lanic.utexas.edu/project/etext/llilas/
ilassa/2007/speasmaker.pdf.
Stana, R. (2009). Immigration enforcement: Controls over program authorizing
state and local enforcement of federal immigration laws should be
strengthened (GAO 09-381T). Washington, DC: U.S. Government Printing
Office. Available: http://www.gao.gov/new.items/d09381t.pdf
51
2013 Hinckley Journal.indb 51
4/30/13 3:48 PM
Story, J. (2006, May 1). Commentaries on the Constitution of the United States.
Wall Street Journal, p.10.
Sullivan, L. (2009). Enforcing nonenforcement: Countering the threat posed to
sanctuary laws by the inclusion of immigration records in the national crime
information center database. California Law Review, 97(2), 567-600.
United States Government Accountability Office. (2009). Immigration enforcement: Better controls needed over program authorizing state and local
enforcement of federal immigration laws (GAO 09-109). Washington, DC:
U.S. Government Printing Office. Retrieved from http://www.gao.gov/new.
items/d09109.pdf.
52
2013 Hinckley Journal.indb 52
4/30/13 3:48 PM