HONOLULU, Hawaii – (Feb. 8, 2018) – A Hawaii House and Senate committee have passed bills to withdraw state resources from the enforcement of most federal immigration laws. Passage of this legislation would likely have the effect of nullifying those federal acts in practice.
A coalition of five Democratic Party representatives introduced House Bill 1994 (HB1994) last month. A coalition of three Democrats introduced a companion bill in the Senate (SB2290) at the same time. The legislation would bar state and local law enforcement agencies from complying with federal immigration detainers or honoring requests for non-public information relating to a person’s immigration status unless specifically required to do so by a warrant signed by a judge.
The proposed law would also ban the using state resources to enforce federal immigration law.
“No agency of the State or any of its political subdivisions shall use moneys, facilities, property, equipment, or personnel of the State or any of its political subdivisions to investigate, enforce, or assist in the investigation or enforcement of any federal program requiring registration of individuals on the basis of race, gender, sexual orientation, religion, ethnicity, or national origin.”
HB1994 would allow law enforcement agencies honor a federal immigration detainer order without a warrant or release information related to a person’s immigration status if the individual has been convicted of a felony or certain misdemeanors, if the individual was arrested on a felony charge and a judge has issued a ruling of probable cause, if there is probable cause to believe the individual has or is engaged in terrorist activity, or if there is probable cause to believe the individual illegally entered the U.S. after deportation.
The House Public Safety Committee passed HB1994 with some technical amendments by a 7-0 vote.
The Senate Committee on Public Safety, Intergovernmental, and Military Affairs passed SB2290 by a 5-0 vote with amendments. The amendments weren’t available at the time of this report.
While the law will not allow state agencies to directly interfere with federal immigration enforcement, it will leave the enforcement of federal immigration law to the federal government in most situations. This would likely make it extremely difficult for the federal government to enforce federal immigration law in Hawaii.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
On immigration, federal resources are even more stretched. As noted in my column in The Hill:
As the U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) notes on its website, the first and foremost factor impacting its enforcement capability is “the level of cooperation from state and local law enforcement partners.”
With just over 5,700 agents nationwide, ERO reported removal of “240,255 aliens in FY 2016.” In spite of the supposedly high number of sanctuary cities nationwide, this number actually represented an uptick from 2015 due partly to what ERO called “increased state and local cooperation.”
At this rate, removing anywhere close to the at least 11 million unauthorized immigrants in the country right now seems impossible.
Simply put, partnerships don’t work too well when half the team quits. And in this case, when most of the team stops participating.
Provisions withdrawing state and local enforcement of federal law in HB1994 and SB2290 rest on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.
The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.
Even in the face of this, some media reports and public commentators have speculated that a new executive order from Pres. Trump would strip all federal funding from any such “sanctuary jurisdictions.” But a full reading of the order reveals this to be extremely unlikely. Also noted in The Hill:
Sec. 9 of the Order clarifies that “sanctuary jurisdictions” are those that “willfully refuse to comply with 8 U.S.C. 1373.” The administration intends to withhold Federal grants from those jurisdictions, “except as deemed necessary for law enforcement purposes,” and from any that have a policy that “prevents or hinders the enforcement of Federal law.”
In fact, the EO is extremely narrow in scope, and the many reports of cities like Boston and Los Angeles being under threat of losing millions of dollars are simply wrong.
8 U.S.C. 1373 bans state and local policies that prohibit the sharing of information with the federal government about the immigration status of an individual.
Some prominent constitutional scholars, including Ilya Somin, argue that this federal act is also unconstitutional and represents an illegal commandeering of state resources.
HB1994 will now move to the House Judiciary Committee. SB2290 will move to the Senate Judiciary Committee. Each bill must pass committee by a majority vote before moving forward in the legislative process.