Academic journal article Harvard Law Review

States' Commandeered Convictions: Why States Should Get a Veto over Crime-Based Deportation

Academic journal article Harvard Law Review

States' Commandeered Convictions: Why States Should Get a Veto over Crime-Based Deportation

Article excerpt

Federal immigration enforcement turns increasingly on criminal law outcomes, with criminal convictions triggering deportability, (1) detention, (2) and ineligibility for discretionary relief. (3) In fiscal year 2018, the United States deported 145,000 noncitizens who were convicted of some crime, comprising 57% of deportations that year. (4) Because the vast majority of U.S. criminal convictions are for state offenses, (5) conviction-based immigration enforcement depends crucially on state and local law enforcement to investigate and prosecute noncitizens.

This creates tensions when federal, state, and local actors disagree on how immigration laws should be enforced. Such tensions come in various permutations: when states seek to enforce immigration laws more harshly than the federal government, (6) when states force cities to cooperate with federal immigration authorities, (7) or when local actors, cities, or states curtail such cooperation, (8) either because they think it will impair local law enforcement (9) or because they disagree with it. (10)

Though such tensions turn increasingly into lawsuits, (11) no state has yet challenged the central premise of this system: that the federal government may condition deportation on the bare fact of a state conviction --even when the state that obtained it disagrees. This Note argues that such involuntary "triggering" effects an unconstitutional commandeering of the state's criminal law enforcement. (12) To be sure, the federal government itself detains and deports noncitizens, demanding no state assistance at the final step. But the process begins earlier--sometimes irrevocably--with state police, prosecutors, judges, and juries. By fulfilling their responsibilities under state law, these actors trigger significant federal sanctions on the individuals the state seeks to regulate--whether or not the state believes those sanctions to be warranted.

This amounts to commandeering. Formally, crime-based deportations don't normally result from a federal determination that a noncitizen committed crimes; they result rather from the federal determination that a state adjudicated the noncitizen guilty of (state) crimes. Under the Court's commandeering cases, that should make all the difference: the federal government has elected to base deportation not on direct regulation of individuals, but rather by operating through states. Practically, the case is stronger still: by triggering deportation based exclusively on state convictions, the federal government outsources the tasks of investigating criminal conduct of noncitizens, apprehending them, and adjudicating their guilt. The federal government thereby gets the benefits of the state's criminal justice system without sharing in its costs. And because the federal government's (in)action flows inexorably from the state's, no one can be quite sure who to blame when the federal government detains and deports someone (or fails to do so). Political accountability--the commandeering cases' lodestar--is eviscerated.

Of course, the federal government maintains broad immigration powers, including the power to detain and deport noncitizens guilty of reprehensible conduct. It may, if it chooses, ascertain that conduct on its own and act accordingly. If it hopes to outsource such determinations, it may ask for and receive help from consenting states' law enforcement. And it may coax or coerce states disinclined to help in myriad ways--including by conditioning federal funds on their cooperation. It simply cannot deny states all opportunity to (withhold) consent to their criminal justice systems' serving federal immigration enforcement.

Given the pervasiveness with which federal action turns on state law classifications, this Note's argument may appear disruptive, perhaps radically so. But even assuming that its central premise (that triggering unwelcome federal action based on a state's regulation presents a commandeering problem) extends to contexts less core to state sovereignty than criminal law, its effect will likely prove practically limited for the same reasons that the original commandeering cases proved practically limited. …

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