DENVER, Colo. (July 1, 2021) – Last week, Colorado Gov. Jared Polis signed a bill into law that places limits on the sharing of personal data relating to a person’s immigration status with the federal government.
Sen. Julie Gonzales (D-Denver) introduced Senate Bill 131 (SB131) on Feb. 25. The law prohibits any employee of a state agency from releasing personal identifying information (PPI) that is not already publicly available for the purpose of investigating for, participating in, cooperating with, or assisting in federal immigration enforcement. The law also applies to motor vehicle records. State agencies can release PPI in order to comply with a court-issued subpoena, warrant, or order.
SB131 also limits the information the state collects relating to immigration status. Beginning January 1, 2022, state agency employees are prohibited from inquiring into, or requesting information or documents to ascertain, a person’s immigration status for the purpose of identifying if the person has complied with federal immigration laws except as required by state or federal law, or as necessary to perform state agency duties, or to verify a person’s eligibility for a government-funded program for housing or economic development if verification is a condition of the government funding.
This provision basically does an end-run around 8 USC 1373. Under this law, states and localities cannot ban information sharing with the feds related to a person’s immigration status. But if state and local law enforcement officers are prohibited from asking about immigration of citizenship status, they can’t violate the federal law in question. They can’t share information they don’t have.
Some prominent constitutional scholars, including Ilya Somin, argue that this federal act is also unconstitutional and represents an illegal commandeering of state resources.
The legislation requires third parties accessing state databases to certify under penalty of perjury that it will not use or disclose PPI for the purpose of federal immigration enforcement.
On May 12, the Senate passed SB131 by a 25-10 vote. The House approved the measure 41-23 with some technical amendments. On June 3, the Senate concurred with the House amendments 26-8. With Gov. Polis’s signature, the provisions of the law go into effect on Jan. 1.
In a statement reported by the Colorado Times Reporter, Gonzales said the collaboration between ICE and state agencies including the Colorado Department of Labor and Employment and the Department of Motor Vehicles, generates fear and mistrust in the immigrant community fearful and makes them reluctant to access state resources.
“It is our responsibility in the state to ensure that all Coloradans have trust in our state agencies. That trust has been broken, and it’s on us to make it right.”
While the law will not empower state agencies to directly interfere with federal immigration enforcement, it will limit cooperation and information sharing. This will likely make it more difficult for the federal government to enforce federal immigration law in Colorado.
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.
Colorado’s ability to control its personnel and resources rests 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. U.S. (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.”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
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.
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