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These Republican Lawmakers Will Happily Abandon Federalism to Deport More Immigrants

Bill would keep states and cities from restraining police cooperation.

ProtestMax Herman/NurPhoto/Sipa USA/NewscomTexas passed legislation forcing local police to help federal immigration officials detain people for deportation. California is considering legislation that's essentially the opposite. Now some Republicans are introducing federal legislation that overrules the states and dictates how local police officers participate in immigration law enforcement.

So, uh, federalism and state's rights? Never mind all that. Rep. Raul Labrador (R-Idaho) has introduced H.R. 2431, the Davis-Oliver Act, co-sponsored by Reps. Bob Goodlatte (R-Virginia), Doug Collins (R-Georgia), Lamar Smith (R-Texas), John Carter (R-Texas), and Ted Poe (R-Texas).

The bill has a lot of components to it, including an expansion of what counts as a deportable crime and the inclusion of illegal immigrants in the National Crime Center Database.

The bill also essentially attempts to overrule leadership of sanctuary cities or states by granting law enforcement personnel (local police) the same authority to investigate, identify, and detain illegal immigrants as federal immigration officials. The law makes it clear that local police would still lack the authority to deport immigrants on their own. But the law does say:

[L]aw enforcement personnel of a State, or of a political subdivision of a State, may investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens for the purposes of enforcing the immigration laws of the United States to the same extent as Federal law enforcement personnel. Law enforcement personnel of a State, or of a political subdivision of a State, may also investigate, identify, apprehend, arrest, or detain aliens for the purposes of enforcing the immigration laws of a State or of a political subdivision of State, as long as those immigration laws are permissible under this section.

Further in the bill, it mandates that states and cities inform the Department of Homeland Security (DHS) in a "timely fashion" when they've apprehended somebody who is in the country illegally or is deportable. And it provides grants to help law enforcement agencies with implementing these procedures, so long as they put into place a written policy of assisting DHS and Immigration and Customs Enforcement (ICE) in deporting immigrants.

In the fight over sanctuary cities (cities that generally don't check on the immigration status of those in custody), there has been quite a lot of confusion over what it means to resist or cooperate with the federal government and ICE on immigration laws. The federal government does not have the authority to force local police officers to assist them or detain deportable immigrants. There is a portion of the U.S. code that forbids states and cities from passing regulations or having policies that prohibit communication between local police and the feds about anybody's immigration status. That's it. It does not require police to assist ICE or even ask about citizenship status.

This bill would change and expand the wording of that federal regulation to forbid states and cities from having rules against assisting ICE and DHS in enforcing immigration laws. Under this change the law would be about much more than communication. Cities would be forbidden from telling police they couldn't hold immigrants to hand over to ICE for deportation. It also specifies which federal grants communities could lose if they do not cooperate with the bill. A federal judge has blocked President Donald Trump's executive order threatening grants to sanctuary cities partly because the grants have to have some sort of connection to regulatory processes and the government cannot simply take grant money away in order to coerce certain behaviors.

Don't take this to mean the grants referenced are narrowly defined, though. Despite the fact that the bill is all about immigration enforcement, it would potentially threaten any Justice Department or DHS grant that was related to "law enforcement, terrorism, national security, or immigration or naturalization." So … that's probably a lot of them.

The law is named after two law enforcement officers killed by an illegal immigrant in 2014. As is typical in these cases, naming the law after dead people is intended to emphasize the worst scenarios in order to deflect away the broader increases in government authority. In reality, even most sanctuary cities will turn over illegal immigrants when the feds provide a warrant or in cases when they've committed violent crimes or felonies.

Arrests by ICE have dramatically increased in the first quarter of 2017, up 37 percent. While the majority of those arrests were for those convicted of crimes, there was also a massive spike of detentions of people who are in the country illegally but have committed no other offenses (and I know this will probably fall on the deaf ears of certain groups of people, but being in the country illegally is itself a civil offense, not a criminal one).

The House Judiciary Committee took up the bill this week, so it has a long way to go before becoming a law. Read the text here of the current version here, and the judiciary committee's summary here.

Photo Credit: Max Herman/NurPhoto/Sipa USA/Newscom

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  • Tak Kak||

    Good. No point in sticking to a principle that is only enforced when it works against you and is otherwise ignored.

  • Chipper Morning, Now #1||

    Dajjal or AddictionMyth? I think they either both got banned or went to the other site.

  • Citizen X - #6||

    DanO IS dajjal/AddictionMyth. Its other accounts got banned by the site admin, which is quite an accomplishment considering they don't even ban spambots.

  • Fist of Etiquette||

    I'm pretty sure federalism is only good for regulating "women's health" issues.

  • Ken Shultz||

    I'm not sure I follow the argument.

    Setting the rules of naturalization is an enumerated power of congress; it is not a reserved power of the states.

    Are we saying that congress enabling local law enforcement to notify the federal government of an illegal alien's immigration status--over the objections of the state government--amounts to an unconstitutional violation of federalism?

    Again, the states do not have the power to set the rules for naturalization. If the states are effectively setting the rules or naturalization--over the objections of congress--then that should mean those states are violating the principles of federalism.

  • BestUsedCarSales||

    My biggest concern coming from reading the article is delegating more power and discretion to local police.

  • Ken Shultz||

    It's confusing, but the legislation appears to be an attempt to overrule state laws that prevent local police from informing the federal government of a criminal's immigration status.

    The legislation appears to take the power of the states to prevent local police from reporting illegal immigrants to the federal government away.

    I would argue that the Constitutions may already do this.

    "The Congress shall have Power To . . . establish a uniform Rule of Naturalization"

    ----United States Constitution, Article I, Section 8

    Doesn't "uniform" means that each state does NOT get to set their own rules?

    Is there another way to interpret that?

  • Tak Kak||

    Naturalization isn't quite the same as immigration. Immigration is obviously being used as a foot in the door to force the latter though.

  • Ken Shultz||

    We're talking about the path to both naturalization and citizenship, and we're talking about whether the illegal aliens in question have violated the rules that Congress has set on naturalization, yes.

    AND we're talking about Congress setting rules that deport convicted criminals.

  • Unreconstructed (Sans Flag)||

    I don't think so. Just because someone is residing in a state contrary to federal law, doesn't mean that the state has changed the federal naturalization process. The feds can still Constitutionally forbid that resident from becoming a citizen, but not, based on purely enumerated powers of the Constitution, throw that person out of the state, or imprison them for being present in that state.

  • Ken Shultz||

    "If the bill is saying that local agencies aren't required to enforce federal laws, but just have the option to, I'm not sure it has much meaning in the end . . . "

    Again, the law under consideration is apparently intended to override states that prohibit local law enforcement from reporting an illegal immigrant's immigration status to the federal government.

    That is about federalism.

    With all respect to Mr. Shackford, I think he's reading this backwards on the federalism charge. Congress has certain enumerated powers, and setting the rules of naturalization is one of them. If the states are prohibiting local law enforcement from complying with federal law, then it may be the states that are violating the principle of federalism. They have no reserved power regarding the rules of naturalization. Congress does however have the enumerated power to set the UNIFORM rules of naturalization.

    By the way, states can't individually declare war on whatever country they like either. That's an enumerated power of Congress, too.

    "Federalism" has come to mean states' rights to a lot of people--because it's usually the federal government that is encroaching on states' rights--not the other way around. That isn't always the case, however, and this is one of those cases where it isn't.

  • XM||

    States don't have to go out of their way to share immigration status of detained individuals with the Feds. That's optional (unless the courts get involved?).

    Texas is apparently trying to mandate that, while CA is trying to outlaw it.

    It's an uncompromising partisan dogfight. Even though I believe in borders and national sovereignty, I don't think it's a good idea for local police to routinely share immigration info with the feds. On the other hand CA is considering a bill that will prevent ICE agents from entering schools under any context, unless they clear it with the principal first. That will potentially put lives at risk.

  • buybuydandavis||

    I'm not sure I follow the argument.

    You followed it exactly, such as it is.

    We oppose forcing states to decentralize decision making to local law enforcement, because decentralization to the states!

    They can kind of make that argument, but it does have an inherent internal contradiction at the heart of it.

    I also wonder about the basic premise that "you can't force states to enforce national law". Really? States aren't corralled into enforcing a drop in the ocean of federal law and activities? Seems highly unlikely. More likely that they're required to help enforce a ton of it.

  • Crusty Juggler aka "Chad"||

    The bill also essentially attempts to overrule leadership of sanctuary cities or states by granting law enforcement personnel (local police) the same authority to investigate, identify, and detain illegal immigrants as federal immigration officials.

    I can't foresee a downside.

  • $park¥ leftist poser||

    So, uh, federalism and state's rights?

    Alright, you people officially have me confused now. Is federalism good or bad? Please choose one. I don't want to keep hearing how it's bad when it lets states set up licensing boards and good if it lets states decide who should or shouldn't be deported.

  • Tony||

    Quick someone tell me that I don't know the difference between libertarianism and anarchism and that's why we have to round up millions of people and forcibly remove them from where they want to be.

  • $park¥ leftist poser||

    You don't know the difference between libertarianism and anarchism and that's why we have to round up millions of people and forcibly remove them from where they want to be.

  • Ken Shultz||

    Tony's an anarchist--and that's why he's argued for years that our rights don't exist unless the government says so.

  • $park¥ leftist poser||

    Well you're a bore. There, I said what everyone else is thinking.

  • Ken Shultz||

    Oh, boo-hoo!

  • Crusty Juggler aka "Chad"||

    Excuse me, you do not speak for me. I was thinking that Ken's comments are always interesting, thoughtful, and a fresh breath of air considering the tone, tenor, and lack of intellectual candor that frequently pollute these comments.

  • buybuydandavis||

    There, I said what everyone else is thinking.


    You don't speak for me.

    I note an increasing program of Progressitarians trying to sneer Ken out of posting. The highest form of praise they can give. They can see he beats the snot out of them, so it's time to try to drive him out with social pressure.

    Leftists always defect from the behavior that makes civilization possible. The proper response is to respond, in kind.

    So fuck yourself with a rusty pipe, dipshit.

    I'd rather read Ken than any of the staff writers.

  • buybuydandavis||

    Presumes to speak for "everyone else" at a Libertarian site.

    Bright boy.

  • Ken Shultz||

    Look, everybody!

    Does Tony think he's an anarchist, now?

    LOL

  • Tony||

    I don't think libertarianism is remotely philosophically coherent, and libertarians are even less so.

    When you say that government is bad because it is violent, thus it should only do those things that involve killing and imprisoning people, it doesn't make any fucking sense.

    When you say taxation is inherently evil, you are making an anarchist's argument. When out of the other side of your face you say it's perfectly fine to deport millions of people, force women to give birth against their will, or do any of the other right-wing assholery most of you guys favor, you sound like right-wing assholes instead of anarchists.

    I'm not here to explain how libertarianism makes sense, because it doesn't.

  • loveconstitution1789||

    Texas passed legislation forcing local police to help federal immigration officials detain people for deportation.


    This is the state of Texas forcing local jurisdictions within Texas to enforce laws which in this case santuary cities are ignoring federal immigration law.

    That is not messing with federalism at all.

  • Ken Shultz||

    Well, obviously, you don't believe in the super-secret, super-reserved powers of municipalities. They're easy to miss. They were written on the back of the Constitution in invisible ink. You have to rub the back with lemon juice or fruit sushi to see them.

  • loveconstitution1789||

    I know. haha.

    Let me tell you too, local politician can spend like the big wigs in Washington. They just cant print their own money and they have a lot less of it on hand.

  • $park¥ leftist poser||

    You should keep reading.

  • loveconstitution1789||

    Yes, I read that Congress is trying to draft legislation to force cities and I agree with Scott on that point.

    Scott comparing Texas forcing Texas cities to do something with Congress trying to force cities is different.

  • loveconstitution1789||

    is different is ridiculous.

    Congress does have a point that immigration is specifically discussed in the Constitution Art. I, Sec 8:
    To establish a uniform rule of naturalization....
    and..To make all laws which shall be necessary and proper for carrying into execution the foregoing powers....

    As with interstate commerce, it makes life more difficult if every town and city has their own rules for how to regulate interstate commerce and deal with naturalization.

  • WakaWaka||

    In the words of Nick Gillespie, isn't this just 'concern trolling'? Since when has this publication supported the notion of federalism or local government, other than when it meets your objectives?

  • Scarecrow Repair & Chippering||

    Be more impressive if they named it after ICE man Brian Terry, victim of the government smuggling guns to drug lords (Operation Fast and Furious).

  • TW||

    Arrests by ICE have dramatically increased in the first quarter of 2017, up 37 percent. While the majority of those arrests were for those convicted of crimes, there was also a massive spike of detentions of people who are in the country illegally but have committed no other offenses (and I know this will probably fall on the deaf ears of certain groups of people, but being in the country illegally is itself a civil offense, not a criminal one).

    If they entered the country legally but remained in the country illegally (such as overstaying their visa), it's a civil offence (because the penalty does not include jail time).

    If they entered the country illegally (such as sneaking across the border), it's a criminal offense (because the penalty includes jail time).

    Either way though, the penalty for being in the country illegally - whether the defendant also committed a crime in the process or not - includes deportation back to their country of origin.

  • Bubba Jones||

    The federal law would preserve freedom of speech for local law enforcement. It doesn't seem to *require* local law enforcement to do anything.

    And the only enforcement mechanism is to withhold federal law enforcement money. Don't we oppose federal law enforcement grants? Aren't fewer swat tanks a good thing?

  • JeremyR||

    Uh, I think protecting the borders is one of the few things the Federal government does have authority over states.

  • Blargrifth||

    Yes, they protect the borders from armies with weapons, not from unaffiliated individuals.

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