DILLON'S RULE: A CHECK ON SHERIFFS' AUTHORITY TO ENTER 287(g) AGREEMENTS

By Taylor, Gregory | American University Law Review, January 1, 2019 | Go to article overview

DILLON'S RULE: A CHECK ON SHERIFFS' AUTHORITY TO ENTER 287(g) AGREEMENTS


Taylor, Gregory, American University Law Review


Introduction

When the Founding Fathers designed our government, it is unlikely they could have anticipated the strain today's immigration enforcement puts on our federalist system. The intersection between law enforcement and the justice sector across state and federal levels involves many different individuals and entities in immigration enforcement, creating tension and confusion when it comes to the delegation of authority and separation of powers. This tension can be illustrated by an issue that courts have yet to consider: the extent of a sheriff's authority to unilaterally enter into a 287(g) agreement with the U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) in states where Dillon's Rule1 applies and sheriffs are not authorized by state law to enter into agreements with the federal government.

287(g) agreements are contractual partnerships between ICE and state-level law enforcement. These agreements derive from 287(g) of the Immigration and Nationality Act (INA),2 which grants the U.S. Attorney General authority to delegate federal immigration enforcement power to local law enforcement agencies (LEAs) through the execution of a written memorandum of agreement (MOA).3 The collaboration necessary for the successful implementation of a 287(g) agreement epitomizes the legal complexity that can arise from intergovernmental cooperation in immigration enforcement, and Dillon's Rule adds to this already complex topic by limiting local law enforcement authority in some jurisdictions.

This Comment argues that, in most cases, sheriffs are precluded from entering into 287(g) agreements in states where Dillon's Rule applies. Furthermore, the limitation that Dillon's Rule creates in this context invalidates existing 287(g) agreements signed unilaterally by sheriffs, and constitutional protections should apply where individuals are detained under these invalid MOAs. Part I provides general background on U.S. immigration in the context of 287(g), a brief history of the development of Dillon's Rule, and sets the foundation for an analysis of sheriffs' authority to enter 287(g) agreements.4 Part ii explains how 287(g) agreements function in practice and discusses how Dillon's Rule can be applied. Part II also addresses pertinent ancillary issues, such as common responsibilities of sheriffs and contract law issues that impact the enforceability of a 287(g) agreement.5 Part iii then applies Dillon's Rule to a sheriff's authority to enter a 287(g) agreement, taking into consideration counterarguments and peripheral issues that could affect a Dillon analysis in this context.6

I. Background

A. U.S. Immigration in the Context of 287(g)

George Washington once wrote in a private letter that "[he] had always hoped, that this land might become a safe and agreeable asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong."7 Despite the first President's aspirations for the country, immigration has proven to be a historically contentious topic in the United States, which is amplified when the immigration rate rises.8 The 1990s, for example, saw a particularly acute spike in immigration rates,9 compelling Congress to amend 287 of the INA in an attempt to strengthen immigration enforcement by expanding ICE's powers.10

Among other things, the 1996 expansion of 287 allows ICE to collaborate with state-level LEAs to enforce federal immigration policy. In relevant part, 287(g)(1) provides that

the Attorney General may enter into a written agreement with a State, or any political subdivision of a State . . . to perform a function of an immigration officer . . . [and] may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.11

Despite this expansion of 287, immigration rates continued to rise at a record-setting pace into the 2000s, hitting unprecedented highs in 2014. …

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