Academic journal article Harvard Journal of Law & Public Policy

Federalism on Ice: State and Local Enforcement of Federal Immigration Law

Academic journal article Harvard Journal of Law & Public Policy

Federalism on Ice: State and Local Enforcement of Federal Immigration Law

Article excerpt


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.


A. 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. …

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