BOSTON (March 17, 2015) – A bill introduced in the Massachusetts House would ban the state from using resources to assist with enforcement of some federal immigration programs, effectively nullifying them in practice.

Evandro C. Carvalho, along with 28 cosponsors, introduced House Bill 1228 (H1228) on March 10. Titled A Bill to Restore Community Trust in Massachusetts Law Enforcement, the legislation prohibits state and local law agencies from cooperating with federal immigration enforcement through a number of specific provisions.

  1. Bars law enforcement from arresting an individual on the basis of a civil immigration detainer or an administrative warrant.
  2. Bars law enforcement from holding an individual on the basis of a civil immigration detainer or an administrative warrant once released from local custody.
  3. Prohibits denial of bail based on a civil immigration detainer or an administrative warrant.
  4. Denies ICE agents the use of state or local facilities, and prohibits ICE access to inmates in person or by phone/video conference.
  5. Prohibits state or local law enforcement from allowing ICE agents access to booking lists and from notifying the feds of an inmates release.
  6. Prohibits law enforcement officials from transporting an inmates into ICE custody.

While the bill would not allow state agencies to directly interfere with federal immigration enforcement, it would leave the feds to handle it alone, with no state or local assistance. This would likely make it almost impossible for the federal government to enforce immigration law in Massachusetts.

The provision banning ICE agents from using state or local facilities for investigative interviews or other purposes closely mirrors a provision in the 1855 Massachusetts Personal Liberty Law, designed to protect individuals accused of being a fugitive slave. The Liberty Law declared that, “No jail, prison, or other place of confinement belonging to, or used by, either the Commonwealth of Massachusetts or any county therein, shall be used for the detention or imprisonment of any person accused or convicted [under the Fugitive Slave Act of 1850.]”

H1228 rests on the well-established anti-commandeering doctrine. The Supreme Court has consistently held that the federal government cannot compel states to cooperate with enforcement or implementation of its programs or mandates. Justice Joseph Story established the principle in the 1842 fugitive slave case Prigg v. Pennsylvania.

The states cannot, therefore, be compelled to enforce them [the fugitive slave clause]; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

Should H1228 pass, Massachusetts would become the third state implement such a law, along with California and Connecticut. A similar bill is currently moving through the Washington state legislature, with another up for consideration in Illinois. With state-level resistance to federal marijuana prohibition reaching historic levels, this represents an expansion of the nullification movement on the left.

“Look, we don’t believe that progressives are often with us on many issues, like health care and gun control,” Tenth Amendment Center founder and executive director Michael Boldin said. “And conservatives often aren’t with us on issues like hemp and marijuana. But the fact is, the federal government doesn’t have the authority to compel states to do virtually anything, and people on both sides are learning to say ‘No.’”

Boldin said he considered this an educational tool for activists.

“The most successful nullification efforts in modern times, marijuana and hemp farming, have come from the left,” he said. “This happens because even when the feds push back, they continue on with what they want to do in their states anyway. The right should learn from this and take the same approach on issues important to them.”

H1228 was referred to the House Committee on Judiciary, where it will need to pass by a majority vote before the full House can consider it.



Mike Maharrey

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