Should feds control immigration?

As I predicted, Attorney General Sessions backed down from his threats against sanctuary cities. In the process, we have learned more about what Sanctuary Cities really are.

President Trump issued an executive order in January designed to shame or coerce state law enforcement into cooperating with Immigration and Customs Enforcement (ICE). In March, the Justice Department issued a list of those who it felt were not sufficiently cooperative. A month later, they had to withdraw the list, as several jurisdictions targeted by Justice protested strongly that, in fact, they do follow the law and cooperate.

What is it that states are required to do? Sessions’ rhetoric in announcing the administration’s demands was broad and threatening, and made it seem like many local and state agencies were in blatant violation of numerous immigration laws.

But when you look at the actual law, it means something very much less: “Title 8, § 1373. Communication between government agencies and the Immigration and Naturalization.”

Service is the statute that AG Sessions was complaining about. That statute only forbids states and local law enforcement from refusing Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

So, a state cannot forbid its law enforcement from receiving information regarding the status of persons in its charge. That is all. It does not mandate that any action be followed regarding the information it receives from ICE.

Local law enforcement pays attention to warrants and other court orders. But they are under no legal compulsion to detain persons for ICE based on a mere detainer request. To do so would compel the states to spend their own resources to serve the federal government, a violation of the Tenth Amendment. It was conservative hero Justice Antonin Scalia who held in a 2007 decision, Printz vs U.S., that “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

On April 25, District Judge William Orrick of Northern California tied the ribbon to the package by issuing a preliminary injunction against Trump’s executive order until it is settled in court.

To be sure, Texas has responded to all this by passing a law—Senate Bill 4—making it mandatory for its law enforcement agencies to follow ICE detainer requests, under penalty of fines and even misdemeanor charges. Nothing wrong with that constitutionally, but it doesn’t affect San Francisco or Chicago. And Texas is being sued by El Paso County and civil rights groups to stop its enforcement of SB 4, which is slated to take effect in September.

The U.S. Constitution does not grant the federal government any authority over immigration itself, but the US Supreme Court granted the feds exclusive jurisdiction in the late 19th century so Chinese immigration could be restricted. Since the Supreme Court has refused to overturn its grant of power, and the states have not rebelled, nor has Congress relinquished the power over immigration quota-setting, we stand today deadlocked in a mess of centralized government laws and policies that few Americans feel are just or even practical.

Recently, a ray of hope for a more federalist approach to immigration came in the form of a bill introduced in Congress by Wisconsin Republican Sen. Ron Johnson and Colorado Republican Rep. Ken Buck that would allow states to determine their visa and guest worker needs. Johnson’s bill recognizes that a one-size-fits-all federal model for visas or guest workers doesn’t work. The states and the private sector will do a better job than the feds. Central planning cannot accurately calculate local needs.