ALBANY (Jan. 12, 2023) – A bill filed in the New York Senate would end state and local law enforcement from assisting with federal immigration control in most cases.
Introduced by a coalition of 13 Democratic Senators on January 4, S257 would restrict state and local police from investigating individuals on the basis of their immigration status. The bill states, “No state or local law enforcement agency, or agent thereof, shall stop, question, interrogate, investigate or arrest a person” suspected of United States immigration or citizenship status violation.
Law enforcement would also be prohibited from inquiring into the immigration status or place of birth of an individual who is stopped, questioned, interrogated, investigated, or arrested; “except where such immigration status or place of birth information is an element of a criminal offense in a specific, ongoing law enforcement investigation.”
The bill would also prevent a potential loophole by stating, “No state or local law enforcement agency, or agent thereof, shall perform the function of or be cross-designated as a federal immigration officer or otherwise engage or significantly assist in the enforcement of federal immigration law.”
While the bill would not allow state agencies to directly interfere with federal immigration enforcement, it would 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 New York.
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 effectively method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.
Former 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 TAC Executive Director Michael Boldin’s 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.
“It is our obligation to protect the function of our local law enforcement and agencies,” said Moya.
Provisions withdrawing state and local enforcement of federal law in SB257 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 future executive order from POTUS would strip all federal funding from any such “sanctuary jurisdictions” as a violation of 8 U.S.C. 1373.”
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. However, S257 avoids confronting it directly by simply banning state and local officials from inquiring about immigration status. It reads, in part:
No state or local law enforcement agency, or agent thereof, shall stop, question, interrogate, investigate or arrest a person for any of the following:
(a) suspected United States immigration or citizenship status violation;
(b) suspected violation of the United States immigration law or authorized regulations; or
(c) a civil immigration detainer.
In short, if they don’t ask about immigration status, they cannot violate 8 U.S.C. 1373’s ban on withholding immigration status with the federal government.
Since the proposed law is considered a “state-mandated program,” it now moves to the Senate Finance committee. It will need to pass there by a majority vote before moving to the full Senate for further consideration.
- Mississippi Bill Would Exclude CBDC from State Definition of Money - February 21, 2024
- Rhode Island Bill Would Legalize Raw Milk Sales; Foundation to Nullify Federal Prohibition Scheme - February 21, 2024
- Idaho Bill Would Take Step Against a Potential Central Bank Digital Currency - February 20, 2024