The Immigration Non-Cooperative?

USA_passport_with_immigration_stamps_from_Austria,_Germany,_Singapore_and_the_US_-_20120708

By Ari Mead

Local governments across the country fought federal immigration policy under Obama. Under Trump the fight continues. Specifically, the President has directed federal immigration agencies to more aggressively enforce current immigration laws and prevent residents with legal documentation from entering the United States based on country of origin.

But, for the first time, states are adopting state-wide policies that attempt to prevent cooperation with federal immigration policies.

The following is an overview of what’s happening:

CALIFORNIA

Several members of California’s legislature have responded with two proposed bills, which aim to protect immigration status, national origin, and religious belief from getting into the hands of federal officials.

Current California law requires that when state or local law enforcement arrest someone they believe is not a citizen, they must report that individual to the federal government. SB 54 would repeal that provision. In addition, the bill prohibits state and local law enforcement agencies, along with other state agencies – including schools – from using any local resources for immigration enforcement purposes. Sb 54 also directs state agencies to adopt the confidentiality policies that the Attorney General defines.

Another proposed bill in California, SB 31, requires state agencies to secure databases containing names, places of birth, addresses and nation of origin. Additionally, the bill disallows California from creating any databases that compile personal information.

WASHINGTON

On February 23rd, Washington State beat California lawmakers to the punch, as Washington’s Governor Jay Inslee signed an executive order blocking state officials and agencies from cooperating with federal immigration raids, sharing private information in agency databases or creating any religious based databases. Although city level non-cooperation policies have existed for decades, these state-wide non-cooperation policies are the first of their kind.

FEDERALISM CHALLENGES

Meanwhile, city non-cooperation policies have been around and have been tested in court, shedding light on some of the legal issues they pose. City of New York v. United States, from the United States Court of Appeals of the Second Circuit, concerned a provision in The Welfare Reform Act that prevented localities from prohibiting their local law enforcement and other agencies from sharing information with the federal government. The City of New York challenged the provision as violating the Tenth Amendment, and argued that the federal government could not interfere with how it instructed their local employees outside of a federal agency. Ultimately, the Tenth Amendment prevents congress from passing laws requiring states to administer civil immigration law. The Second Circuit decided that in the face of federal policy requesting cooperation, a city policy cannot prevent an official from voluntarily sharing immigration information. At the same time the ruling from the Second Circuit does not discuss whether a federal policy could require a state agency or city official to obtain information to report to the federal government.

Another case that considered the legal issues imbedded in non-cooperation policies was Sturgeon v Bratton. Sturgeon, a Ninth Circuit Court of Appeals case, involved an LAPD policy called S.O. 40, which stated that obtaining immigration information was not a matter for local authorities. A group of citizens challenged the policy as unconstitutional, arguing that that federal immigration law preempted the city policy. The Court of Appeals disagreed and said that the Tenth Amendment “shields state and local governments from the federal government requiring them to administer federal civil immigration law.”

In the months and years to come, more courts will likely have plenty of opportunities to decide whether state non-cooperation policies are also shielded by federalism. Whether states themselves are shielded by federalism depends on the federal government’s actions moving forward. The federal government could limit funds tied to immigration, or test the Tenth Amendment in this area again, challenging state laws that prevent local authorities from acting to enforce immigration laws.

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