"Clear Eye for the State Guy": Clarifying Authority and Trusting Federalism to Increase...

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.

This Note ultimately concludes that if Congress wishes to encourage states and localities to assist with immigration enforcement, it should act immediately to clarify congressional intent with regard to states' and localities' legal authority to do so. More importantly, after clearly authorizing, empowering, and encouraging states and localities to enforce immigration law, Congress should stay its hand and place its trust in the principles of federalism, thereby allowing state and local governments to resolve the problem of immigration enforcement (and the many remaining issues) for themselves. In short, Congress can catch more flies with the "honey" of the federalist system than it can by coercing cooperation with the "vinegar" of withheld federal funds.

I. General Overview of the Immigration Enforcement Debate

The current sentiment that illegal immigration is a "severe and growing problem"21 has placed comprehensive immigration reform atop the national legislative agenda.22 This Part explains how changing immigration patterns and post-9/11 attitudes toward immigration enforcement have propelled the particular topic of state and local assistance into the larger immigration reform movement. Yet while supplementing federal immigration authorities with nonfederal manpower might arguably enhance national security and more effectively remove criminal aliens and absconders from the country, many are concerned that injecting state and local police into immigration enforcement might also jeopardize public safety by alienating immigrant communities and increasing the use of racial profiling to enforce a complex federal immigration code.23

A. Understanding the Problem of Illegal Immigration

Approximately 12 million illegal immigrants currently reside in the United States.24 Significantly, illegal immigrants (as opposed to legal immigrants) now form almost half of the growth in the overall immigrant population.25 In addition to the national security concerns discussed in the next subpart, illegal immigration creates many social and economic problems: it undermines the legal system, weakens national identity, and adversely impacts the job market and the provision of social services.

Illegal immigration can undermine the general rule of law in a society.26 A legal system will only remain credible if it consistently (and fairly) executes its own rules.27 Yet persistently high rates of illegal immigration can lead present and potential illegal immigrants to conclude not only that the United States does not enforce its immigration laws but that the United States may not enforce its other laws by inference. When laws no longer serve as a deterrent to potential violators, the integrity of the entire legal system is jeopardized.28

Furthermore, illegal immigration can interfere with the preservation of national common identity. Because immigration law embodies a country's idea of itself,29 high rates of illegal immigration can upset the control mechanisms by which that identity is formulated, particularly if the influx is from a small number of countries.30 Illegal immigration can contribute to the formation of enclaves and ultimately prevent assimilation into the receiving country's culture.31

Most obviously, illegal immigration affects the nation's economy, although assessing the character and degree of this economic impact is a notoriously difficult and controversial task. Even twenty years ago, labor economists could not agree about whether illegal immigrants were displacing American citizens from the domestic labor market.32 Today, the debate continues as competing studies purport to demonstrate either how illegal immigrants compete with American citizens, particularly minority, non-high school graduates, for blue collar jobs33 or, alternatively, how they do the jobs "Americans won't do" and therefore are indispensable to the economic well being of the country.34 Others fault illegal immigration for bankrupting health care,35 increasing the cost of public education,36 and overcrowding jails and prisons.37 As illegal immigrants are increasingly blamed for a host of social and economic problems,38 federal immigration authorities face heightened pressure to improve the overall enforcement of existing immigration laws.

B. Various Factors Pushing Immigration Enforcement to the Forefront

Apart from heightened awareness of the social and economic problems associated with illegal immigration, recent changes in the overall character of immigration and the post-9/11 national security mindset have forced the issue of immigration enforcement into the national consciousness. An unprecedented 34 million immigrants, legal and illegal, now live in the United States and form about 12% of the nation's population.39 Moreover, in the last five years a greater number of illegal immigrants have arrived in the United States than legal immigrants.40 This proportional increase in the number of illegal immigrants is magnified by at least one other difference in contemporary immigration patterns, namely where new immigrants (legal and illegal) settle once they arrive in the United States. More immigrants are choosing to live in suburbs than in cities,41 and an increasing number are going to "new settlement states" such as Georgia, North Carolina, Utah, Delaware, and Iowa (rather than more historically settled areas such as Texas, California, and Arizona).42 Because of changes in labor migration, places that are "barely big enough to register on state maps" are now experiencing an influx of legal and illegal immigration,43 and these smaller communities are beginning to take notice.44

The past decade has also witnessed a shift in federal immigration enforcement priorities. Before 9/11, almost all federal effort was directed at controlling the southern border,45 with very few resources dedicated to immigration enforcement in the country's interior. Furthermore, because Congress has consistently failed to adequately fund work-site enforcement provisions and create employer penalties,46 the "jobs magnet" has drawn even larger numbers of illegal immigrants.47

For many, the events of 9/11 changed this state of affairs and crystallized the nexus between immigration enforcement and national security.48 The 9/11 Commission recognized how an enormous illegal immigrant population, along with its attendant need for fraudulent identification documents, could provide cover for potential terrorists.49 Furthermore, reports that terrorists have considered infiltrating the United States through the southern border further confirm the connection between immigration policy and national security.50 In light of strong evidence connecting immigration violations to facilitation of terrorist activity, many now see enforcement of immigration law as part and parcel of counterterrorism measures,51 to which Congress has belatedly begun to dedicate significant federal resources.52

Apart from counter-terrorism objectives, federal immigration authorities must continue to address high levels of serious immigration lawbreaking. Over 300,000 criminal aliens53 (foreign nationals who have committed traditional crimes, such as assault, robbery, and drug trafficking while residing in this country) and 400,000 absconders54 (foreign nationals who have disappeared after being ordered deported) remain at large in this country. The overwhelming enormity of immigration enforcement tasks has prompted some to suggest an abandoned and controversial mechanism for increasing the number of law enforcement personnel capable of responding to violations of immigration law: involving state and local police in immigration enforcement.

C. Nonfederal Involvement in Immigration Enforcement

The idea to involve states and localities in immigration enforcement is not novel. Rather, it has been an issue at the forefront of the immigration debate for decades. This subpart offers a brief history of state and local involvement in immigration enforcement and then presents arguments for and against allowing such nonfederal enforcement.

1. Historical Events Shaping Immigration Enforcement Policies.According to congressional researchers, while states and localities have played a "substantial role" in controlling immigrants and enforcing immigration law throughout most of America's history, they have largely vacated that role in recent decades.55 Until the early 1970s, state and local police routinely enforced federal immigration law on the border and in interior locations.56 While not considering immigration enforcement to be their primary responsibility, many police departments during that time permitted their officers to stop and detain foreign nationals based solely upon reasonable suspicion of violating federal immigration law (and to arrest and hold based on probable cause).57 As the illegal immigrant population continued to expand,58 however, assisting in the apprehension of such a large number of persons seemed a futile task when not even the federal government was taking immigration enforcement seriously.59

The civil rights revolution of the 1960s gave greater weight to immigrant complaints of racial profiling by local police.60 Then, in the 1980s, political opposition to the activities of the Reagan Administration in Central America spurred various churches to declare themselves sanctuaries for refugees flooding across the southern border to escape civil war.61 As illegal immigrants gradually became a more sizeable portion of the communities whose safety the state and local police were entrusted with protecting, police themselves were faced with a difficult choice: they could enforce immigration law and risk alienating potential crime victims, witnesses, and informants who also happened to be illegal immigrants; or they could leave immigration enforcement to the federal government and turn a blind eye to obvious law-breaking.62

Entire cities (including some of the country's largest), and some states,63 soon instituted "don't ask, don't tell" policies to prohibit their municipal employees-including police officers-from inquiring into an individual's immigration status.64 Other localities have further forbidden their officers from voluntarily communicating with federal immigration authorities about a person's immigration status65 (a policy that some fear has potentially deadly consequences).66 Although Congress has twice banned state and local restrictions on their law enforcement (and other) personnel communicating with federal immigration authorities67 (and that ban has withstood constitutional challenge),68 many sanctuary policies nevertheless remain in place today.69

2. Arguments Supporting Nonfederal Immigration Enforcement.-Reenlisting state and local police in the immigration enforcement mission could be advantageous for nationwide enforcement efforts and for states and localities themselves. According to this argument, state and local police most obviously represent a massive force multiplier for federal efforts that cannot respond alone to the monumental task of immigration enforcement.70 Yet assisting in immigration enforcement could also directly benefit the interests of state and local law enforcement.

State and local police have a unique role to play in the formation of a comprehensive domestic counterterrorism system since they represent approximately 95% of the counterterrorism capability of the United States.71 In the weeks before 9/11, local police encountered three of the 9/11 terrorists through routine traffic stops.72 Had those officers been authorized to detain or arrest for immigration violations (and had they been able to recognize those violations), it is possible they might have disrupted the terrorists' plans.73 Because state and local police encounter foreign nationals in routine law enforcement situations, they may ideally serve as the eyes and ears of American law enforcement,74 observing the potential terrorist activity of immigration violators.75 Activating state and local police for enforcing immigration law, then, might provide federal law enforcement personnel with another counterterrorism tool, since the federal officers "simply cannot cover the same ground."76

States and localities could take advantage of the immigration enforcement power to more effectively police ordinary crime as well. Crime committed by illegal immigrants (often against other illegal immigrants)77 is on the rise.78 In recent years, state and local police have faced increasing violence by brutal street gangs that are primarily composed of illegal immigrants (such as Mara Salvatrucha, or MS-13).79 In a far more general sense, however, lax enforcement of immigration laws may create an environment of disrespect for law that can contribute to the commission of crimes that state and local police deal with every day.80 According to the "broken windows" philosophy of policing,81 by cracking down on even the most minor offenses (including perhaps immigration violations),82 law enforcement can intervene early in a pattern of criminal activity that may later range into even more serious criminal offending.

3. Arguments Opposing Nonfederal Immigration Enforcement.-Not surprisingly, various public policy concerns weigh against expanding state and local involvement in immigration enforcement.83 The immigration code is complex, arguably too complex for state and local police to enforce without a high degree of training and expertise.84 Not only will mistakes inevitably occur, but police might be tempted to engage in racial profiling in order to simplify the process of identifying illegal immigrants, which will undermine the civil rights of citizens and noncitizens alike.85 Past attempts by local police to enforce immigration law by orchestrating mass round-ups of Hispanic-looking individuals have outraged immigrant communities and resulted in costly litigation.86 Federal utilization of local jails to detain criminal aliens and absconders after 9/11 (owing to a lack of federal detention space) have also spawned allegations that immigrant detainees were abused by local officials.87

Increased nonfederal involvement might actually jeopardize, rather than enhance, public safety. Not only would involving police in immigration enforcement mean that fewer resources are available for policing ordinary street crime, but such a policy would also likely erode immigrants' trust in the police.88 Many police departments embrace the philosophy of community policing, which advocates that enhancing relationships between law enforcement and those protected by law enforcement encourages cooperation and information sharing and ultimately creates a safer community.89 Involving those same state and local police in the enforcement of immigration law could potentially have a chilling effect on the willingness of all immigrants (legal and illegal) to report crimes or assist police in criminal investigations,90 thereby undermining their ability to effectively perform their duties.91

As demonstrated in this section, legitimate arguments abound regarding whether state and local immigration enforcement constitutes sound public policy. No matter how harmful or beneficial increasing state and local immigration enforcement might be, however, debate about the subject is irrelevant if the Constitution or federal law nevertheless prohibit such enforcement.

II. Legal Authority for Nonfederal Immigration Enforcement

In 1996, the Department of Justice's Office of Legal Counsel (OLC) examined relevant congressional statutes and case law and concluded outright that while states and localities could enforce criminal immigration provisions, they lacked the legal authority to enforce civil immigration provisions.92 Six years later, in a dramatic departure from that position, however, the OLC concluded in April 2002 that state and local police possess the inherent authority to enforce immigration law and that Congress has not preempted that authority.93 Not surprisingly, this sea change has generated a great deal of confusion and controversy about the scope of state and local immigration enforcement power. In order to ascertain the extent of that authority, two separate questions must be posed: (1) does the Constitution prohibit states from assisting in the enforcement of all immigration law?; and (2) if not, has Congress nevertheless preempted state immigration enforcement to any degree?94 Both the constitutional question and the preemption question are highly contentious and have been answered differently by various legal academics and commentators, as well as by the legislative, judicial, and executive branches of the federal government.

A. Constitutionality of Nonfederal Immigration Enforcement

Constitutional uncertainty provides the first layer of controversy surrounding the legal authority of states and localities to participate in immigration enforcement.95 The Constitution does not explicitly grant the power to regulate immigration to Congress or other parts of the federal government. The immigration power has actually been extrapolated from various congressional powers in Article I,96 as well as from principles of sovereignty in international law,97 such that the power to regulate immigration is presently understood to be exclusively federal.98 Perhaps more significant for state and local immigration enforcement, however, is that Congress's immigration power is understood to be plenary.99 Because immigration policy is "peculiarly concerned with the political conduct of government,"100 courts have not historically subjected immigration policy to much substantive judicial review.101 Therefore, despite substantial criticism from legal scholars,102 the so-called plenary power doctrine is a mainstay of immigration jurisprudence,103 and Congress possesses an unusual degree of leeway in the regulation of immigration relative to its other powers.104

While it is well-settled that the power to regulate immigration is an exclusively federal one,105 some argue that "exclusive authority to prescribe the rules on immigration does not necessarily imply exclusive authority to enforce those rules."106 Whether the Constitution also limits the enforcement of immigration law solely to the federal government is disputed.

The federal executive branch and various legal commentators have recently advocated the "inherent authority" position,107 arguing that the Constitution does not forbid state and local enforcement of immigration law and that states have inherent authority to arrest for violations of federal law, including immigration law, that is subject only to federal preemption.108 Because states retain a "very extensive portion of active sovereignty" that existed before the Constitution,109 their authority is displaced only when the Constitution itself specifically delegates a power exclusively to the federal government.110

Although the power to regulate immigration has been so delegated, the Tenth Amendment ensures that the general state police power to enforce the law of the land was not so delegated and continues to reside squarely within the purview of the states.111 This idea of residual sovereignty also means that, while states have no obligation to enforce federal law, they may choose do so as one sovereign able to accommodate the interests of another sovereign.112 The inherent authority argument requires one further clarification in order to explain how state and local arrests for immigration violations were accepted as a perfectly constitutional practice until the late 1970s:113 the authority to arrest is a subset of-not identical to-the authority to enforce.114 The power to arrest only involves taking temporary custody of an immigrant violator whereas the power to enforce runs the gamut from arrest, investigation, preparation of a case, removal, and all the other powers currently exercised by federal ICE agents.115 In summary, states and localities retain the power to arrest for violations of immigration law even without express federal delegation (unless the federal government preempts).

The inherent authority position, as well as the overall legal reasoning of the OLC's April 3, 2002, memorandum, has been sharply disputed.116 Critics note that the inherent authority position, taken to its logical conclusion, has absurd implications that reverberate beyond the immigration context117 and accuse the OLC of attempting to "[d]uck" the constitutional consequences of "unfettered" state and local immigration enforcement authority without regard to the President's constitutional obligation to "take care" with the execution of federal laws.118

Yet some critics have marshaled an additional constitutional argument against state and local immigration enforcement: they suggest that the "uniformity" requirement in the Constitution119 (combined with overall federal exclusivity in immigration regulation) constitutes a requirement that immigration law be enforced in a uniform manner as only federal enforcement can accomplish.120 Although federal courts have not directly addressed the constitutionality of nonfederal immigration enforcement, the longevity of state and local immigration arrests as an accepted practice and the assisting character of the enforcement power make it likely that nonfederal immigration enforcement (by detention or arrest) does not violate the Constitution. The question of whether such enforcement nevertheless violates federal law remains.

B. Congressional Preemption of Nonfederal Immigration Enforcement

Whether Congress has preempted state and local enforcement of some, or all, federal immigration law is the subject of even more debate than the constitutional question because discerning congressional intent in this area is a particularly difficult task.121 Even if states have constitutional authority to enforce immigration law, federal law preempts inconsistent state law under the Supremacy Clause where concurrent jurisdiction exists.122 As mentioned before, until recently it had been assumed that though state and local officers have authority to enforce criminal immigration violations, Congress nevertheless preempted their enforcement of civil provisions.123 But that view may be changing as part of a "general movement" toward the expansion of state and local involvement in immigration enforcement.124

To decide whether Congress has preempted state law, courts must determine whether Congress explicitly or implicitly intended to preempt state law.125 Courts will find that Congress intended to preempt state law when: (1) there is explicit statutory language to that effect; (2) Congress intended to occupy the field; or (3) a state's activity "actually conflicts with federal law."126 Determining congressional intent to preempt in the immigration law context, however, is unusually frustrating.

As part of its power to regulate immigration, Congress created both civil and criminal violations of the immigration code.127 Alien smuggling,128 illegal entry (entry without inspection),129 and reentry by aliens that have been previously removed (for the commission of serious crimes, for example)130 are criminal offenses under the Immigration and Naturalization Act (INA).131 Mere unlawful presence in the United States is presently a civil, not a criminal, violation of the INA,132 and an individual's subsequent removal is likewise a civil proceeding.133

Federal courts have not squarely articulated how this civil-criminal distinction affects immigration enforcement. In Gonzales v. Peoria,134 the Ninth Circuit assumed, in dicta, that "the civil provisions of the Act regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration"135 and that "[congressional] intent to preclude local enforcement may be inferred" for civil immigration enforcement but not criminal immigration enforcement.136 The Tenth Circuit, on the other hand, has arguably failed to distinguish between civil and criminal immigration violations when a police officer did not know at the time of the arrest which type of provision the defendant had violated.137 Opponents of increased state and local immigration enforcement, however, disagree with such a reading of the Tenth Circuit cases.138

Federal lawmakers have failed to express clearly their legislative intent in this area.139 Over the years, Congress has enacted various statutes that appear to limit the scope of state and local immigration enforcement authority to emergency situations,140 to a particular class of immigration violators,141 or within a specific federal authorization scheme. Congress created the latter mechanism (known as section 287(g) agreements) in 1996 whereby states and localities could elect to negotiate with the federal government for specific law enforcement personnel to receive immigration training and become authorized to perform certain functions of a federal immigration officer.142 While it is unclear how a court would respond to the preemption question if posed directly, the Ninth Circuit and many legal scholars find these statutory provisions with their limiting language to be persuasive proof that Congress has indeed preempted states and localities from policing civil immigration violations.143

The more likely scenario is that, far from being pushed out of the field of immigration enforcement by Congress, states and localities simply chose to opt out as the political realities of immigration shifted.144 Various executive opinions and a few poorly crafted statutes later, what was originally de facto absence of voluntary state and local assistance became understood as de jure federal prohibition of that assistance. Thus, if Congress wants to welcome confused states and localities back into the field of assisting with general immigration enforcement, then it must address the muddle surrounding federal preemption in this area.

III. Two Legislative Proposals for Increasing Nonfederal Immigration Enforcement

As this Note has demonstrated, whether (or to what extent) Congress has preempted state and local immigration enforcement is arguably unclear in light of contradictory case law and the recent shift in the executive branch's interpretation. This state of affairs keeps states and localities uncertain about what tools their law enforcement personnel can bring to bear in policing their own communities and unacceptably compromises the ability of states and localities to effectively partner with the federal government in the effort to enhance homeland security. Though the OLC's April 3, 2002, memorandum unequivocally declares that states and localities possess inherent authority under the Constitution to make arrests for violations of immigration law and that such authority has not been preempted by Congress, OLC opinions are not controlling. While they may have the "power to persuade";145 OLC opinions certainly do not have the same authority as an act of Congress.146 Therefore, Congress should immediately clarify its intention with regard to state and local immigration enforcement by passing legislation to clearly affirm (or deny) the authority of state and local police to enforce immigration law. This Part analyzes the content and constitutionality of two different approaches presently being considered in Congress to affirm such authority: the coercive approach and the permissive approach.

A. The Coercive Approach: The Border Protection Act of 2005

The controversial Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (the Border Protection Act), which passed the House of Representatives in late 2005, embodies one version of a coercive approach to increasing nonfederal immigration enforcement. In many ways, the Border Protection Act is the final manifestation of various bills that have been proposed in Congress, most recently the Clear Law Enforcement for Criminal Alien Removal Act of 2003 (2003 Clear Act)147 and the Clear Law Enforcement for Criminal Alien Removal Act of 2005 (2005 Clear Act)148 and their Senate counterparts.149 Like its predecessors, the Border Protection Act clarifies and affirms that states and localities have inherent authority to enforce immigration law, and its language attempts to dispel the confusion surrounding federal preemption:

Notwithstanding any other provision of law and reaffirming the existing inherent authority of States, law enforcement personnel of a State or a political subdivision of a State have the inherent authority of a sovereign entity to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens in the United States (including the transportation of such aliens across State lines to detention centers), for the purposes of assisting in the enforcement of the immigration laws of the United States in the course of carrying out routine duties. This State authority has never been displaced or preempted by Congress.150

One interesting aspect of the Border Protection Act (which is echoed in the permissive approach of the Comprehensive Enforcement Act, to be discussed later) is its clarification that local law enforcement agencies would not actually be required to charge crime victims or crime witnesses for immigration violations (nor would they be required to report them to federal immigration authorities).151 This provision preserves the kind of discretion and independence that state and local law enforcement agencies fear losing in a federally mandated scheme.

The Border Protection Act also provides some "carrots" to encourage increased state and local immigration enforcement. It provides a training manual (and pocket guide for quick on-the-job reference) to state and local law enforcement personnel at federal expense152 and mandates that training be available to those personnel on the federal nickel.153 The Border Protection Act also seeks to reward states and localities that authorize and (as a matter of policy and practice) assist in immigration enforcement by awarding grants to purchase equipment and technology,154 which will enhance their capacity to enforce immigration law in the course of their duties.155

Yet the distinguishing feature of the Border Protection Act, like other versions of the coercive approach,156 is the "stick" it employs to encourage states and localities to assist in immigration enforcement:

Effective 2 years after the date of the enactment of this Act, a State (or political subdivision of a State) that has in effect a statute, policy, or practice that prohibits law enforcement officers of the State, or of a political subdivision within the State, from assisting or cooperating with Federal immigration law enforcement in the course of carrying out the officers' routine law enforcement duties shall not receive any of the funds that would otherwise be allocated to the State under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)).157

The funds alluded to come from the State Criminal Alien Assistance Program (SCAAP). SCAAP is a federal program that "partially reimburses state and local governments for the costs of incarcerating unauthorized criminal immigrants."158 By incorporating that provision into law, the Border Protection Act blatantly attempts to crack down on state and local sanctuary policies and effectively coerces those states and localities into greater involvement in the immigration enforcement regime. As an interesting incentive for states and localities to refrain from instituting such policies in the future, the Border Protection Act would award forfeited "sanctuary" SCAAP funds to those states and localities without such policies on the books.159

Under existing constitutional jurisprudence, the Border Protection Act's coercive technique of withholding federal funds from states and localities that will not cooperate with federal immigration enforcement efforts is likely a perfectly permissible use of Congress's spending power.160 While the Constitution forbids the federal government from commandeering state and local executive officers into enforcement of a federal regulatory scheme,161 Congress may "encourage a State to regulate in a particular way" or "hold out incentives as a method of influencing a State's policy choices."162 To that end, Congress may attach conditions on the receipt of federal funds as long as those conditions "bear some relationship to the purpose of the federal spending."163 Conditioning SCAAP funds so as to encourage state and local immigration enforcement (or to discourage state and local obstruction of federal immigration enforcement) probably meets this requirement and therefore would pass constitutional muster. Yet the coercive approach is not the only option available for federal lawmakers seeking to get more nonfederal assistance in immigration enforcement.

B. The Permissive Approach: The Comprehensive Enforcement Act of 2005

The Comprehensive Enforcement and Immigration Reform Act (the Comprehensive Enforcement Act), proposed in the summer of 2005, incorporates a permissive method of increasing nonfederal involvement in immigration enforcement.164 Using almost identical statutory language to the Border Protection Act's "clarifying" provision,165 the Comprehensive Enforcement Act essentially does nothing more than reassure states and localities that they have congressional permission to assist in immigration enforcement. The Comprehensive Enforcement Act informs states and localities that most sanctuary policies do, in fact, violate federal law,166 but it does not incorporate any sort of "stick" to accomplish its goal of increased state and local assistance in immigration enforcement (nor does it provide as many incentives as does the Border Protection Act).

The fact that there are two very different approaches to increasing nonfederal immigration enforcement often goes unnoticed in the furor surrounding this controversial topic. For example, in declaring their opposition to an earlier attempt to incorporate the permissive approach, various organizations disagreed with how the legislation "forc[ed] local governments to assume the responsibility for enforcing immigration laws" along with their traditional responsibilities.167 Yet the salient characteristic of the permissive approach is the fact that it forces nothing: it is entirely voluntary. Another opponent made a similar misstep when it criticized the same legislation for "requiring state and local police to enforce federal immigration laws [in violation of] the principles of federalism."168 Each statement reveals a fundamental misunderstanding of the different choices facing Congress (and states and localities) under a coercive or permissive proposal.

IV. Trusting Federalism to Effectively Increase Nonfederal Immigration Enforcement

After arguing that Congress should definitively clarify nonfederal authority to enforce both civil and criminal violations of immigration law, this Note analyzed the two options under Congressional consideration for achieving state and local involvement: federal coercion and federal permission. The dilemma in choosing between these options stems from the fact that some states and localities seek to expand their involvement in immigration enforcement, while others stymie (and even shun) any such involvement. Regardless of Congressional authorization, state and local law enforcement personnel can only enforce immigration provisions to the extent consistent with state law,169 which means that the preferences of individual states will inevitably come to bear on immigration enforcement policy. Rather than coerce states into a uniform program, Congress should instead trust the principles of federalism by leaving the decision whether (and to what extent) to enforce immigration law in the hands of states and localities. This Part applies federalism principles to immigration enforcement and advocates that Congress should take the permissive approach to achieve the most effective result.

A. Problems with the Coercive Approach

In December 2004, the International Association of Chiefs of Police (IACP) dealt a stunning blow to proponents of increased state and local immigration enforcement by announcing its opposition to the 2003 Clear Act (one of the earliest versions of the coercive approach).170 Losing the support of the organization representing law enforcement leadership significantly undermined one of the key selling points of the bill's proponents: clarifying the authority of states and localities to assist in the enforcement of immigration law would make their jobs easier.171 A key to understanding why the coercive approach is an unsatisfactory solution can be found in the reasons given by the IACP for its opposition.

According to the IACP, any legislation that seeks to have state and local law enforcement agencies participate in immigration enforcement must, at a minimum, contain the following elements: voluntariness, authority clarification, systematic incentives, a liability shield, and training resources.172 Of those elements, the organization cited the involuntary nature of state and local participation as its primary concern: "[A]ny legislative proposals that seek to coerce cooperation through the use of sanction mechanisms that would withhold federal assistance funds from states or localities is unacceptable."173 Thus, the coercive approach is unsatisfactory due to congressional insistence upon using the "stick" of conditional spending to push states and localities into immigration enforcement or else face losing much-needed federal funds. While state and local agencies are already strapped for cash, the federal government threatens them with the prospect of losing more resources through the coercive approach.174 SCAAP funding is the federal government's way of reimbursing nonfederal entities for helping clean up the mess at the back-end caused by the federal government's own failed immigration policy at the front-end. Ironically, by removing SCAAP funding, the coercive approach attempts to encourage more immigration assistance by taking from these nonfederal entities that which is owed them for immigration assistance they have already rendered. This tactic is of questionable effectiveness since it antagonizes the very actors whose cooperation the federal government is seeking: states and localities who justifiably perceive SCAAP funding as already rightfully belonging to them.

In considering whether to embrace the coercive or permissive approach, Congress should note that the IACP, significantly, did not "rule on [the] fundamental philosophical question" of whether state and local police should enforce immigration law at all.175 Instead, the IACP adamantly asserted that such a question was "an inherently local decision that must be made by a police chief, working with . . . elected officials, community leaders and citizens."176 In other words, while the IACP is not per se opposed to local (or, presumptively, state) police ever being involved in extensive immigration enforcement, the organization's primary dissatisfaction stems from the fact that the coercive approach effectively takes that choice out of the hands of law enforcement and its political representatives.177

Furthermore, the coercive approach offends principles of federalism. Even though it is probably a constitutional use of congressional spending power, the coercive approach inadvertently provides obstructionist or sanctuary states and localities with political cover from the consequences of their stance. Sanctuary jurisdictions can describe themselves as the blackmailed victims of a strong-arming federal government, one that "bullies," "burdens," and "coerc[es]" them into participating in a federal regulatory scheme.178 Meanwhile, those same entities can avoid the political accountability that follows having to explain the reasons for their policies to a voting public who might disagree with their choice. Although Congress is acting within the Constitution when it threatens to withhold federal funds, on balance it ultimately cripples its own cause.

B. Benefits of the Permissive Approach

As its core point, this Note argues that Congress should simply let states and local officials (and their respective communities) know that, as far as the federal government is concerned, state and local police are free to identify, investigate, detain, and arrest individuals for both civil and criminal violations of immigration law. Rather than effectively deciding at the national level the questions of whether and how to go about reentering the field of immigration enforcement, Congress can leave the ball in the court of each state and locality to weigh the costs and benefits of such a policy and ascertain its own community's comfort level. This Note argues that the federalist structure (and its underpinning principles) can facilitate satisfactory policy outcomes on this contentious issue.179

At present, there is very little political accountability for the failure of a governmental entity to exercise its immigration enforcement power effectively.180 The federal government tries to explain that effective enforcement is impossible with the obstruction of sanctuary states and cities.181 States and cities, for their part, point the finger at the federal government for failing to take responsibility for what they assert is an exclusively federal task.182 At the same time, many state and local police departments (and their legal advisors) cite the lack of clarity surrounding exclusive federal jurisdiction as an excuse for not wanting to get embroiled in the political controversy.183 Thus the confusion that surrounds what states and cities may do to address the problem on their own leaves the American public, as citizens of both the states and the United States, uncertain about which level of government deserves to have its feet held to the fire for the failures in immigration enforcement. In other words, Americans cannot figure out who is to blame for the present crisis in illegal immigration.184

Yet Congress still has a unique opportunity to effect a federalist coup. At present, the federal government possesses the clearest legal authority to enforce immigration laws, yet states and localities bear most of the costs of a failed immigration policy.185 By the gesture of untying the hands of state and local police to enforce immigration law (even though those hands were most likely never tied to begin with),186 Congress can, to borrow a phrase from civil litigation, "put states to their proof and force sanctuary states and cities to defend their policy choices to their constituencies. An underlying assumption of federalism is that "[i]f one government is not doing what 'the people' want, they can seek it from a different government."187 Studies have demonstrated that "as satisfaction with the performance of a particular policy sours, the agency or government administering that program begins losing credibility and interest groups begin lobbying for a shift in functional responsibility to a different agency or government."188 In the context of immigration enforcement, Congress can, by pursuing the permissive approach, help nudge the locus of the American citizenry's expectations about immigration policy-at least with regard to immigration enforcement-on to states and localities.

If congressional leaders have accurately ascertained the post-9/11 high priority placed on enhanced immigration enforcement, then they have nothing to fear from trusting federalism. A May 2005 Zogby poll found that over 80% of Americans already think that state and local police should be involved in immigration enforcement.189 This probably explains the phenomenon of recent years in which local officials across the country have "begun incorporating immigration into the calculus of local politics."190 In New Hampshire, for example, when ICE agents refused to take custody of an illegal immigrant last year, a local police chief interpreted state law in a "highly unusual"191 (and ultimately unsuccessful)192 attempt to charge the illegal immigrant with the state offense of criminally trespassing upon the entire state of New Hampshire.193 Also, in response to crisis levels of illegal immigration in their states, the governors of Arizona and New Mexico have declared states of emergency and have enhanced cooperation between their police and federal immigration authorities.194 The governor of Texas has awarded border counties in that state $6 million in grants to "deter illegal immigration and prevent border-related crime."195 Numerous other states are similarly considering proposals to increase immigration enforcement within their borders.196

Another reason for Congress to avoid the coercive approach and to trust federalism stems from the lack of national consensus about state and local immigration enforcement as public policy and the implications of fiscal coercion for the long-term interests of our federalist system. When "some states seek[] to impose preferences about morally contentious issues on other states through national legislation,"197 Congress is tremendously tempted to take action that will encroach on the autonomy of dissenting states. It is that very autonomy that the federalist structure is intended to protect.198 The coercive approach undercuts the benefits of federalism by creating a "federally imposed homogenization of preferences" about whether states and localities should enforce immigration law.199 Yet, as Michael Ignatieff argues in the slightly different context of the war on terror, "In any liberal democracy, standards . . . will be set by adversarial moral competition."200

Extended to the immigration context, Ignatieff s idea isolates the question of whether state and local immigration enforcement is a good choice for each state or locality and argues in favor of removing that question from the chokehold of the federal government and, thereby, setting the states in "moral competition" with one another. By clarifying and affirming legal authority, the question is dropped down to fifty legislatures (and thousands of county, city, and special district governing bodies), instead of just one national legislature. This might also dissipate the effect of special interest groups on the lawmaking process,201 which, in turn, would help render the outcome more representative of the electorate's desires.

Furthermore, the political economy of immigration enforcement lends itself particularly well to devolving state and local immigration enforcement choices to the various states and localities. There is often a geographic mismatch between the costs and benefits of these political choices. For example, the benefits of an effective antiterrorism policy accrue in a jurisdiction different than the jurisdiction bearing its burdens: the benefits of avoiding a terrorist bombing at a Houston refinery (through aggressive counterterrorism tactics in Buffalo) may alienate the local Arab and Muslim immigrant population in Buffalo, not Houston.202 In the context of immigration enforcement, the jurisdiction bearing the burdens and experiencing the benefits is one and the same. In other words, locally felt costs of state and local immigration enforcement (such as an increased unwillingness of immigrant crime witnesses to come forward) would be offset by the locally felt gains of that enforcement (e.g., decreasing immigrant gang violence).

As stated before, if Congress has accurately ascertained the degree of public support for state and local immigration enforcement, then pursuing a policy of permission without coercion will have three benefits. First, federal immigration authorities will receive increased enforcement assistance from states and localities that are already willing to help but are uncertain about their legal authority to do so. Presumably, such state and local assistance would be more effective because the concerned authorities would have deliberated about the decision in light of their particular community's needs. Because immigration enforcement would not be coerced, some states and localities would be more willing to "buy in" to its importance.203

Second, noncoerced cooperation creates a unique opportunity to use states as laboratories for change.204 If states come along voluntarily, they can do so according to their own needs and at their own pace and level of intensity.205 The result would likely be healthy experimentation to figure out how best to balance the often competing policy concerns of community policing, international gangs, and national security.206 Interest in the section 287(g) agreements207 has risen dramatically in the past year208 as states and localities observe how the process has worked for others and contemplate how to negotiate an agreement that will meet the particular needs of their communities. In considering whether to participate more generally in immigration enforcement, states and localities would similarly be able to test the waters for themselves about how to best inform immigrant communities of their particular immigration enforcement goals and inform those communities about any contemplated safeguards, such as the protections available to crime witnesses, informants, or victims.

The third benefit of the permissive approach would be a practical one for the federal government. Once federal immigration authorities are able to determine which states and localities are effectively assisting in immigration enforcement, they will be able to identify each sanctuary state and locality that has maintained its policies (even after facing increased public scrutiny). With less manpower expended at the identification stage of immigration enforcement in states and localities that are willing to assist, federal immigration authorities could focus their resources and attention on those areas where they reasonably expect little cooperation, thus increasing the overall effectiveness of immigration enforcement.

C. Responding to Criticism of the Permissive Approach

One criticism of the permissive approach is the patchwork policy created by allowing some states and localities to choose more assistance with immigration enforcement while others choose less (or none). It is true that the permissive approach will not accomplish an entirely consistent, across-the-board immigration enforcement system.209 Allowing some states a choice to enforce immigration laws when others do not might also mean that "the extent to which police act to enforce immigration law could depend on the locality, the precinct or even the individual officer."210 It could also cause illegal immigrants to move from one aggressive state to another state "without measures hostile to illegal immigrants."211 That result is exactly what Ignatieff's "adversarial moral competition" yields: some jurisdictions deliberately make themselves uncomfortable places for an illegal immigrant to live while others maintain themselves as sanctuaries. But, with the permissive approach, at least each of those jurisdictions is operating in accordance with its own interests and sense of justice.

Another criticism of the permissive approach is that it leaves unanswered concerns about state and local inexperience in navigating the complexities of immigration law, particularly with regard to ascertaining the immigration status of an individual.212 After 9/11, the DOJ authorized the entry of information about certain kinds of immigration violators into the National Crime Information Center (NCIC) database (which is an often accessed database maintained by the FBI to provide state and local police with access to criminal information in their routine duties).213 Yet many have argued that inadequate mechanisms exist to ensure that the immigration-related information entered into the database is accurate and up-to-date and therefore state and local police will be consulting unreliable information in their investigation of immigration violations.214 The permissive approach does not resolve that issue, but Congress can, and should, do so. This Note assumes that the vast majority of state and local officers likely have little interest in getting involved in the intricacies of determining immigration status since they did not elect to become immigration officers in the first place. What they do need is clear empowerment to observe, investigate, and detain based upon reasonable suspicion that an immigration violation has taken place (and arrest and hold based on probable cause established by reliably accurate information). Perhaps state and local officers should not have access to all information on immigration violations (only those for criminal aliens or those who have absconded from removal or deportation orders). Until NCIC is regularized, state and local officers can be warned that any information they receive from the database about particular kinds of violations runs the risk of creating false positives.215

Concerns about racial profiling and civil rights abuses are particularly heartfelt when contemplating an expansion of the exercise of state and local police power (albeit not an expansion of the authority to exercise that power) over a minority. These concerns may be offset by a comment from the 9/11 Commission Report on the "importance of trusting subjective judgment":

One potential hijacker was turned back by an immigration inspector as he tried to enter the United States. The inspector relied on intuitive experience to ask questions more than he relied on any objective factor that could be detected by "scores" or a machine. Good people who have worked in such jobs for a long time understand this phenomenon well. Other evidence we obtained confirmed the importance of letting experienced gate agents or security screeners ask questions and use their judgment. This is not an invitation to arbitrary exclusions. But any effective system has to grant some scope, perhaps in a little extra inspection or one more check, to the instincts and discretion of well trained human beings.216

With increased experience in immigration enforcement, state and local officers may develop exactly the kind of instincts and discretion that the 9/11 Commission highlighted as being so critical to effective immigration enforcement.

As for concerns about alienating immigrants from the police, the permissive approach allows each community to decide how to balance the myriad competing concerns surrounding general national security and their particular public safety. Both the coercive and the permissive approaches still allow state and local police to choose not to enforce immigration law against victims or witnesses of crime.217 In either case, each police department has discretion to decide to what extent, if at all, immigration enforcement will enter the local policing equation. In the end, as is presently the case, daily interactions with law enforcement would determine the degree of trust existing between local police, citizens, and immigrants they are duty-bound to protect. Congress can clarify the authority of states and localities to make that decision, but it cannot and should not make it for them.

Opponents of state and local involvement in immigration enforcement should take heart. As this Note has argued, Congress would be best served by enacting the permissive approach that trusts the mechanisms of federalism and leaves states and localities accountable to their own constituencies. It is at the state and local level that opponents of nonfederal immigration enforcement will be able to most effectively have their voices heard and their ideas incorporated into the particular circumstances of their communities.218

V. Conclusion

While clarifying and affirming the authority of state and local police to enforce immigration law would not solve the illegal immigration problem, it is an absolutely crucial first step. Even though the broader task of wholesale immigration reform will likely take many more years to develop and implement, in the here and now, the muddled status quo cannot hold.219 Political leaders and the national media are beginning to acknowledge that "the pressure to 'do something' on illegal immigration is mounting."220 In that environment, not knowing whether state and local assistance may be given has the effect of discouraging those state and local officers from proffering that assistance, even when they consider it part of their duty as law enforcement officers to do so.

If Congress were to pass a statute that incorporated the permissive approach, it will have done more than just preserve the balance of power between state and federal government (a noble goal indeed, but one that likely preoccupies law students and law professors more than it does the average city cop).221 Congress will have gained willing, rather than grudging, assistance of the very kind that is absolutely necessary for the goals of even the coercive approach to be realized: the elevation of the rule of law, detention of violent criminals, the protection of national security, and more actively engaged states and localities-some as partners, others as critics-in the formulation of a national immigration enforcement policy.

-Laurel R. Boatright