Academic journal article Texas Law Review

"Clear Eye for the State Guy": Clarifying Authority and Trusting Federalism to Increase Nonfederal Assistance with Immigration Enforcement*

Academic journal article Texas Law Review

"Clear Eye for the State Guy": Clarifying Authority and Trusting Federalism to Increase Nonfederal Assistance with Immigration Enforcement*

Article excerpt

If the 9/11 terrorist attacks changed everything,1 they particularly changed the character of American law enforcement and the relationship of federal authorities to their state and local counterparts. Although less publicized than its condemnation of the infamous intelligence-sharing "wall,"2 the 9/11 Commission also insisted upon increased enforcement of the nation's immigration laws3 to prevent another terrorist attack and noted the "growing role for state and local law enforcement" in ongoing counterterrorism efforts.4 To that end, politicians, academics, journalists, and law enforcement officials have advocated removing the "other wall" in American law enforcement:5 the wall that currently discourages the country's 700,000 state and local police officers6 from enforcing federal immigration law.7

Although state and local police have undisputed legal authority to enforce the immigration code's criminal provisions,8 most do not assist in immigration enforcement since they perceive little federal support for their efforts.9 For example, when state and local police have encountered illegal immigrants10 in the course of their routine policing duties11 and have then contacted federal immigration authorities, the Interior and Customs Enforcement agency (ICE)12 has historically refused to take custody of those immigrants, citing a lack of resources and detention space.13 Moreover, motivated by political pressure and public safety concerns, some states and localities have even enacted "sanctuary" (or "noncooperation") policies, actively prohibiting their law enforcement personnel from assisting immigration authorities unless required to do so by law.14 To further complicate matters, over the past twenty years Congress, the federal courts, and the executive branch have sent confusing (and sometimes contradictory) signals concerning the scope of state and local legal authority to enforce immigration law.15

Prompted by rising state and local frustration with inadequate federal immigration enforcement and heightened awareness about the interconnectedness of illegal immigration and national security,16 Congress has recently considered enlisting state and local police as part of broader immigration reform efforts. Federal lawmakers have contemplated two distinct techniques for procuring state and local involvement in immigration enforcement, referred to by this Note as the coercive and permissive approaches.17 The coercive approach, most recently exemplified by the controversial Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (the Border Protection Act),18 not only clarifies that states and localities have the legal authority to investigate, arrest, and detain foreign nationals who have allegedly violated federal immigration law but takes an additional step to coerce sanctuary states and localities into abolishing their noncooperation policies as a condition for continued receipt of certain federal funds.19 The permissive approach, on the other hand, exemplified by the Comprehensive Enforcement and Immigration Reform Act of 2005 (the Comprehensive Enforcement Act),20 simply affirms state and local immigration enforcement authority.

Part I of this Note outlines the ongoing debate about the public policy consequences of nonfederal immigration enforcement by discussing the problematic phenomenon of illegal immigration, the shifts in federal enforcement priorities, and the implications of increasing state and local immigration enforcement. Part II addresses the scope of legal authority for nonfederal immigration enforcement by examining opinions issued by the executive branch, federal courts, and legal scholars. Part III analyzes various legislative proposals that incorporate both coercive and permissive approaches to nonfederal immigration enforcement. Part IV argues that the coercive approach inappropriately jeopardizes the long-term interests of the federalist system. It then advocates that Congress should pursue the more federalist-friendly permissive approach, which leaves the decision whether (and to what extent) to enforce immigration law squarely in state and local hands. …

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