ALBANY, N.Y. (March 30, 2023) – On Tuesday, a New York Assembly committee passed a bill filed that would prohibit state and local law enforcement from assisting with federal immigration enforcement in most cases.
Introduced by a coalition of 48 Democratic Assembly members on Mar. 21, Assembly Bill 5686 (A5686) would restrict state and local police or school resource officers from engaging in immigration enforcement or using public funds to aid in immigration enforcement, as well as prohibiting them from working with federal immigration authorities.
Law enforcement would also be prohibited from investigating an individual based solely on the basis of an immigration detainer, civil immigration warrant, or a suspected violation of immigration law. No information could be collected from individuals regarding their citizenship, immigration status, nationality, or country of origin, unless required by law or necessary to administer a public program or benefit sought by that person.
Whatever information may be obtained regarding an individual’s immigration status, the law forbids state and local police from communicating it to immigration authorities. Likewise, the law prohibits the custody transfer of individuals to immigration authorities absent a valid court order or judicial warrant issued by an independent judge appointed pursuant to Article III of the US Constitution.
On March 28, the Assembly Codes Committee passed A5686 by a 14-7 vote.
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 A5686 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.
During the Trump administration, some media reports and public commentators speculated that an executive order 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.
After passing the Assembly Codes Committee by a vote of 14-7 with 1 abstention, A5686 was referred to the Assembly Ways and Means Committee. It will need to pass there by a majority vote before moving to the full Assembly for further consideration.