Immigration

The Trump Administration's Extraordinary Plans to Use Local Cops for Immigration Enforcement

In an unprecedented move, it wants them to assist in border patrol.

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Jeff Sessions
DonkeyHoter via Foter.com

Attorney General Jeff Sessions, whose future in his job is a bit uncertain right now, issued a memo two weeks ago clarifying that he'd employ a narrow definition of sanctuary cities when determining which cities to target for defunding. This might make it easier for the Trump administration to defend its executive order cracking down on these cities in court. However, that doesn't mean that its efforts to coax, cajole and coerce local cooperation for immigration enforcement are constitutionally unproblematic. In fact, they may pose the biggest challenge to federalist principles since the Civil Rights era.

Following the July 2015 murder of Kate Steinle by a clearly deranged undocumented immigrant in San Francisco, a sanctuary city, then-candidate Trump declared that he would end sanctuary cities. "Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars," he assured.

But exactly which jurisdiction counts as a sanctuary city is up for debate. There is no definition in law or regulation. According to the most common usage of the term, these are cities that refuse to honor "detainers" issued by the Immigration and Customs Enforcement agency to hold undocumented Immigrants until its agents can take them away. However, several federal courts have ruled that local authorities can't detain anyone—even undocumented immigrants—for longer than warrants based on the infraction for which they were brought in without running afoul of the Fourth Amendment.

This opens communities to lawsuits, which they are understandably eager to avoid. But that's not the only reason that many of them decline to honor these detainers. They also argue that detainers distort their crime fighting priorities, forcing them to divert precious law enforcement resources from bigger violent crimes to minor non-violent infractions. And in immigrant-heavy communities, such efforts breed fear and distrust of the local police, discouraging people from reporting serious crimes.

More to the point, as a matter of law, detainers are merely requests, not legal orders. And the federal government cannot defund cities for not honoring something that it cannot order.

That's why a California judge last month halted the implementation of the administration's executive order, noting that, as written, it was too ambiguous and could potentially target jurisdictions that merely refuse to obey detainers.

Sessions' new guidance tries to address that objection by clarifying that the order's defunding threat would apply only to localities that violate 8 U.S.C. Section 1373. This law prohibits jurisdictions from barring their officials from sharing immigration and citizenship information with federal authorities.

This likely makes the executive order more defensible in court. But here's the thing: it'll apply only to a handful of cities since there are very few cities that actually bar such information sharing. But even they can ultimately escape the defunding threat by simply opting not to collect this information in the first place. The Justice Department last week asked the court to vacate its order based on this exact argument—the order, and the memo, essentially do nothing.

Even though the prospects of a legal defeat may have forced this administration to water down its anti-sanctuary city executive order, that does not mean that it has given up on trying to commandeer a local immigration enforcement force. Earlier this year, ICE started issuing—and updating every week—a "shame list" of jurisdictions that decline to honor its detainer requests. However, it paused updating this list in April after only three weeks when some cities objected that the list contained significant errors, including on the list cities that honored detainers.

But that does not exhaust the administration's efforts. Its recently released budget calls Congress to pass laws that would make detainers mandatory and expand the list of federal funds for which immigration cooperation is legally required. But even with the blessing of Congress, the law itself would be subject to constitutional challenge because of the 10th Amendment's anti-commandeering principle.

Additionally, the administration is reinstating the 287(g) program that allows cities and states to voluntarily sign up with the feds for immigration enforcement activities. Indeed, for every sanctuary city that refuses to cooperate with the feds, the administration is trying to sign up a 287(g) city.

Under this program, state and local law enforcement agencies can receive training in immigration law from the Department of Homeland Security and act as immigration agents to investigate, arrest and detain immigrants. The program itself has withstood court challenge, since it is voluntary, but that does not mean it has not met problems in implementation. In fact, the Obama administration had ended most of these agreements after charges of civil rights abuses surfaced not just by the likes of Arizona Sheriff Joe Arpaio who notoriously used his powers to tyrannize the Latino community—but other jurisdictions also faced civil rights lawsuits due to overzealous or inadequately trained officers making ill-advised immigration arrests based on little more than racial profiling.

And there's more. For the first time, the Trump executive order would use such deputized officers not just in the interior to apprehend criminal aliens but also at the border to snag unlawful entrants, something that has been an uncontroverted federal responsibility. Some states, notably Texas, have tried on their own to "assist" federal Border Patrol agents by deploying state law enforcement personnel along the border. However, the Border Patrol has in the past been deeply uncomfortable and skeptical about such assistance because state police lack the training to properly coordinate operations, especially in remote areas sometimes resulting in conflicting operations and confusion as to who the real authority is. (Hence, even when National Guard troops were deployed on the U.S.-Mexico border in the early 2000s, they were mostly placed in subordinate roles such as back office administrative work and fence-mending.)

The Trump administration is trying to augment federal immigration agents with state and local law enforcement by hook or by crook. Even though Attorney General Sessions watered down his sanctuary cities executive order to avoid getting into constitutional hot water, DHS continues to push 287(g) agreements. Those efforts, along with the other new measures the administration is proposing to co-opt local resources for federal ends, will raise their own constitutional and legal problems.

No matter how you look at it, trying to turn local cops into a federal deportation force is likely to mean many more legal showdowns.

Theresa Cardinal Brown is director of immigration policy at the Bipartisan Policy Center and a former policy advisor at U.S. Customs and Border Protection and the Department of Homeland Security.

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  1. They also argue that detainers distort their crime fighting priorities, forcing them to divert precious law enforcement resources from bigger violent crimes to minor non-violent infractions.

    Pshaw. Provide grants for equipment and overtime and slap a “multi-agency task force” label on it and they’ll be glad to do it.

    1. Brown seems to not understand that that *is* their crime fighting priority – bigger violent crimes are what police officers do when there no overtime with a multi-agency task force ‘policing’ minor non-violent infractions available.

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    2. Special Weapons and Taxidermy, where if they shoot the wrong kid they have the handcuffed body stuffed and returned to next of kin.

    3. Running a computer background check and holding a suspect for an extra day or two isn’t a big drag on “resources”. Given the costs of prosecution and post-sentencing incarceration having the feds deport suspects should conserve “resources” long-term. Those in local government who say it’s a resource issue are liars who simply don’t want immigration limits and requirements enforced and are doing their bit locally to sabotage the federal government.

  2. Earlier this year, ICE started issuing ? and updating every week — a “shame list” of jurisdictions that decline to honor its detainer requests. However, it paused updating this list in April after only three weeks when some cities objected that the list contained significant errors, including on the list cities that honored detainers.

    And they are our best and brightest.

  3. The Trump administration is trying to augment federal immigration agents with state and local law enforcement by hook or by crook.

    So? The Obama administration forced numerous state and local institutions to help with its Title IX and affirmative action enforcement.

    However, I think that rounding up illegals is probably not the best primary strategy; that should be going after employers and tax evaders.

    1. Why? If a dude is here working why should we care? And as for tax evaders – we’re *libertarians*, tax is not ‘the price we pay for civilization’.

      Its the gelt we must submit in order to be allowed to carry on our lives.

      1. People who work to improve their lives and the lives of others without express government permission are the literal worst.

      2. Re: Agammamon,

        Why? If a dude is here working why should we care?

        Because “We’re All Fascists Now” and “Nation Of Laws?” and “Dam Immigruntz Takum Er Jebz!”

      3. Why? If a dude is here working why should we care?

        Because low-income earners consume a disproportionate amount of government benefits.

        we’re *libertarians*, tax is not ‘the price we pay for civilization’

        In a libertarian society, government doesn’t need to tax much because government doesn’t spend much. But in our society, government spends much on everybody, hence everybody needs to chip in to pay for it.

        I have no problem with opening the borders once we get rid of the welfare state. As long as we have a welfare state and massive government spending, the borders need to remain closed to people with lower than average income potential.

      4. Flooding job markets (and government program waiting lists) with foreigners negatively impacts working-poor and poor citizens so you should care. Perhaps absolutist libertarian open-borders ideology means not caring about other Americans.

    2. So? The Obama administration forced numerous state and local institutions to help with its Title IX and affirmative action enforcement.

      Obama sort of did something similar, so it’s all good!

      1. Obama sort of did something similar, so it’s all good!

        Our legal system is based on precedent. So, yes, if Obama did it and got away with it, then it ought to be legally “all good” for Trump.

    3. Two wrongs make a right.

      I guess “but Obama!” has indeed replaced “but Bush!”.

      1. Hey, there’s both “but Obama!” and “but Hillary!” It’s twice as sophisticated.

      2. Since Obama was largely indistinguishable from Bush when it came to government overreach, there was no “replacement” but simple continuity.

    4. People with credentials don’t complain about dying-ass affirmative action (exception – SCOTUS appointments). Thankfully AA is close to dead.

    5. I think a law that imposed a fine of $1000 per day plus up to a year in jail for each violation, which prohibited any employer or landlord from negligently employing or renting property to a criminal invader – would probably be enough. In the case of employment, a mandatory jail term of 1 month for the immediate supervisor AND the CEO of the company for a second offense would get the message across.

      “Negligence” would be defined by failure to employ E-Verify.

      No place to live. No jobs. Self-deportation would become reality.

  4. Sadly, Sessions is experienced enough to overtake Alberto Gonzalez as the worst AG of all time.

    We would be better off with a total incompetent as AG – as Rick Perry is to Energy or Ben Carson is to HUD.

  5. Remember during the debates Chris Christie off-handedly remarked that if the Mexicans couldn’t get their shit together on the war on drugs he’d be fine with sending American law enforcement into Mexico to arrest those drug lords – and nobody (besides me) shit a brick over the suggestion that committing an act of war by violating a foreign nation’s sovereignty was no big deal. We’re at war here, folks, and the Constitution is not a suicide pact, merely a license to murder. Secret laws overseen by secret courts say it’s just fine to kill citizens of foreign countries with which we are not at war and you’re a traitorous terrorist-lover if you dare suggest the idea that secret laws and secret courts are just a wee bit un-American, unpatriotic if you don’t salute those drone strikes. Next to this, what’s a little dragooning of sovereign states’ law enforcement personnel?

  6. Take a back seat violent crime, we gots to go round up some brownies. If you’re brown and you have nothing to hide, an altercation with the police shouldn’t worry you at all.

    There really isn’t a downside here.

    1. Look Crusty, this massive expansion of the police state will be targeted only at those dirty nasty illegals, so literally none of it will affect citizens at all.

      1. No one who has rights will have them violated.

        1. If you like your rights, you can keep your rights.

      2. Not one American citizen would be impacted if local police officers – acting as federal deputies – enforced immigration laws within the 100-mile border zone.

        1. Because… Police officers *know* in their hearts what an American citizen looks like.

          Right????

          1. They are capable of recognizing expired visas, though.

          2. They’ll know ’em when they see ’em, and juries are selected on their affirmation that if a cop says it, it’s true by definition and by consensus.

    2. Violent criminals are, well, violent. Those Heroes in Blue might not make it home safe every night if they have to actually go after murderers and rapists and armed robbers, etc.

      1. The Police can be perfectly safe if the follow the shoot first and ask questions later doctrine.

    3. Enforcement against illegal immigrants has nothing to do with race. The fact that you think it does makes you a f*cking racist.

      1. Are you saying “illegal” is not a race?

  7. Nation’s top LEO’s message to lesser LEOs, “Stop resisting!”

  8. RE: The Trump Administration’s Extraordinary Plans to Use Local Cops for Immigration Enforcement

    Yeah, right.
    As if the state and local cops have enough to become immigration enforcement officials when they’re not abusing our rights and bodies.

  9. We had that before. When Kenyans were 3/5 of a voter the Fugitive Slave Act ordered all and sundry to assist in their recapture. This was upheld in the Dred Scott case by the highest court in These States. The difference is that today Congress, Senate, DEA, CIA, GAFISUD, TF, CFT, DNFBP, IRS-CID, INL, ICRG, GIABA all instruct foreign governments to paint their own subjects black, as it were, by accepting our exports of sumptuary laws branding them criminals ready for torture. If we weren’t exporting laws making fascist dictatorships kill their own subjects like Trooper Tiller gunning down a teenage pothead–that AND wreck the economy via forfeiture laws–folks might want to stay in their own free and prosperous countries.

  10. Why not simply use 8 U.S. Code ? 1324 to prosecute all the politicians whose policies

    “…knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation”?

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  12. Local cops in Mexico (and in just about every other country on the planet) definitely enforce immigration/visa policies. It doesn’t seem to be an intolerable resource drain elsewhere so why is it here?

  13. Nothing like turning local police into immigration agents? After all, there has never been any suggestion that the local police forces were selectively enforcing the law, treating minorities and people of color more violently that whites What could go wrong?

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