HONOLULU, Hawaii – (March 5, 2019) – Today, the Hawaii Senate passed a bill to end state cooperation with enforcement of some federal immigration laws.
A coalition of three Democrats introduced Senate Bill 557 (SB557) in January. The legislation would prohibit state law enforcement agencies from taking certain actions solely “for the purpose of enforcing federal immigration laws,” including:
(1) Stop, question, interrogate, investigate, or arrest an individual based solely upon:
(A) Actual or suspected immigration or citizenship status; or
(B) A civil immigration warrant, administrative warrant, or immigration detainer in the individual’s name, including those identified in the National Crime Information Center database;
(2) Inquire about the immigration status of an individual, including a crime victim, a witness, or an individual who calls or approaches the police seeking assistance, unless necessary to investigate criminal activity by that individual; or
(3) Perform the functions of a federal immigration officer or otherwise engage in the enforcement of federal immigration law, including pursuant to title 8 United States Code section 1357(g).
In short, should the law pass, Hawaii law enforcement officers would no longer enforce federal immigration law for the federal government, leaving enforcement to federal agents.
In addition, similar to laws already in effect in California and Connecticut, SB557 would ban the state from comply with federal immigration detainer requests that ask law enforcement to hold people in prison longer than they’re scheduled to be held. The only exception is that a request could be honored for up to 48 hours if the person being detained for a felony or “there is probable cause to believe that the individual has or is engaged in terrorist activity.”
While the law will not allow state agencies to directly interfere with federal immigration enforcement, it will leave the enforcement of some federal immigration law to the federal government in most situations. This would likely make it more 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 a 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 SB557 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.
SB557 will now move to the House for further consideration.
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