José Antonio Elena Rodriguez was sixteen in October 2012 when a border patrol officer shot him repeatedly in the back and head. The officer — officials did not release his name for more than two years after the killing1 — claimed José had thrown rocks at him from the Mexican side of the border. Prosecutors brought no charges.
Anastasio Hernandez Rojas was killed on May 28, 2010. Immigration officials deported him after twenty-seven years of living in San Diego, and officers caught him trying to return to his wife and five children. A cell phone video captured the events that led to his death.2 Officers tazed the forty-two-year-old Rojas five times while he was was handcuffed and surrounded by a dozen agents. They demanded he “quit resisting”3 as he cried for help.4 The coroner declared his death a homicide, but prosecutors did not convene a grand jury until two years later.5 They never announced an indictment.
Policing is at an inflection point. Police killings of unarmed African American men inspired the national conversation about policing, and those killings are, appropriately, the conversation’s focus.6 The conversation requires context, though — not only background,7 but foreground.8 This Chapter highlights the policing of immigrants. What was once a civil-enforcement regime has developed alongside the modern criminalization, enforcement, and incarceration regime. It is now executed by federal, state, and local officers.9 It is the majority of federal criminal work.10 It shares the goals of criminal enforcement: immigration enforcement is used to manage crime, and criminal enforcement is used to manage immigration.11 And like the victims of police violence, immigration policing’s victims have little recourse. In some ways, they have even fewer remedies.
This Chapter describes developments in policing immigrants, identifies a gap between police officers’ capacity to do harm and victims’ rights to a remedy, and proposes enforcement consolidation as a means to bridge that gap. The argument proceeds in three sections. Section A describes immigration enforcement’s roots and growth. In important ways, that enforcement is now indistinguishable from policing. Section B identifies an accountability deficit — a gulf between police’s capacity to harm immigrants and immigrants’ access to any sort of remedy. That section further argues that the gulf is widened by immigrants’ limited access to constitutional protections. Section C offers a way forward: consolidating immigration policing in the federal government to increase transparency and facilitate reform.
A. Developments in Policing Immigrants
Certain features of the immigration-enforcement regime have remained static over the last two centuries; others have changed dramatically. The forces driving the immigration regime, for instance, have not changed: regulation has always been driven in part by an image of immigrant criminality,12 an image which itself has been driven by racism.13 The tools to implement those forces, though, have changed. The modern criminal justice system and immigration enforcement regime have fused together,14 and today it is possible to say that immigration enforcement is the work of police generally. This is due not only to an explosion of criminal laws governing migration, but also to the extent to which federal, state, and local police enforce both these criminal laws and the civil provisions of the immigration law. This section describes these changes from two perspectives: the laws that are enforced and the actors who enforce them.
1. The Laws Enforced. — Immigration law is complex, and this section describes developments only as they have intertwined civil immigration enforcement with the criminal law. Criminal law began to filter into the civil immigration-enforcement regime in 1917 when Congress created a “narrow class of deportable offenses.”15 Congress expanded the class with the Immigration and Nationality Act of 1952,16 the Anti-Drug Abuse Act of 1988,17 the Immigration Act of 1990,18 and the Illegal Immigration Reform and Immigrant Responsibility Act of 199619 (IIRIRA). The immigration laws now identify broad categories of criminal “convictions”20 — like “aggravated felonies” and “crimes involving moral turpitude” — that trigger sharp and inevitable civil-immigration consequences. Since the 1990s these categories have included many minor offenses.21 The “aggravated felony” category, for instance — which originally included only severe crimes like murder, drug trafficking, and firearms trafficking — now includes crimes like misdemeanor drug possession.22
As the authority to deport expands, the power to stop deportation contracts. Congress’s initial removal regime afforded courts “broad discretionary authority to prevent deportation.”23 By 1990, Congress had eliminated that discretion.24 And in 1996 Congress eliminated the Attorney General’s power to prevent deportation.25 The consequences of criminal conviction, then, are not only severe but also inevitable. The Supreme Court has now said that criminal defense attorneys are constitutionally incompetent if they do not advise their clients of these consequences.26
In addition to adding civil-immigration consequences to otherwise criminal behavior, Congress has labeled immigration violations as criminal.27 The Immigration Reform and Control Act of 198628 (IRCA) criminalized certain violations of immigration law,29 and the scope of criminal immigration law has continued to expand.30 In 2005, Customs and Border Protection (CBP) and the Department of Justice piloted “Operation Streamline,” a zero-tolerance program that files criminal charges against people arrested by CBP officials.31 Men, women, and children are automatically charged with illegal entry, a misdemeanor punishable by six months in federal prison.32 Others are charged with illegal reentry,33 a felony offense that could, if the reentrant has a criminal record, result in twenty years in prison.34
It is hard to overstate the significance of these legislative changes to immigration enforcement for criminal justice enforcement, prosecution, adjudication, and incarceration. Immigration crimes like illegal entry and reentry did not exist before the 1980s, but since 2004 they have “topped the list of federal prosecutions.”35 Since 2009, they have constituted more than half of the entire federal criminal docket.36 In some parts of the country the numbers are more dramatic: eighty-eight percent of all federal prosecutions in the Southern District of Texas are for illegal entry or reentry into the United States.37 A surge in immigration policing has stretched courts thin38 and changed the face of American prisons.39
2. The Actors Enforcing Immigration Laws. — The federal government enforces federal immigration laws, and today states and cities do too. State and local police have the authority to enforce immigration laws by two broadly defined sources. Section (a) describes federal delegation, and section (b) describes enforcement by state authority.
(a) Enforcement by Federal Delegation. — Immigration enforcement is the prerogative of the federal government, but Congress has defined circumstances under which the federal government may delegate immigration-enforcement authority to state and local police. The biggest federal delegation program, the 287(g) program, allows the Attorney General to grant immigration enforcement authority to state and local police departments that sign Memoranda of Understanding (MOU) with Immigration and Customs Enforcement (ICE).40 These MOUs allow state and local police to enforce civil immigration laws41 so long as they participate in ICE training, agree to ICE supervision, and abide by certain ICE rules.
The Secure Communities Program (SCP) is another increasingly important federal delegation program.42 Under SCP, ICE can issue “detainers”43 to state and local police authorizing them to keep certain people incarcerated while ICE decides whether to detain them itself. State and local jails do not have to use this authority,44 but they may, if ICE asks them to, incarcerate people who have not been and will not be charged with a crime.
(b) Enforcement by State Authority. — States and cities often enforce federal immigration laws — and their own immigration policies — without federal authority. States, at times joined by the federal government,45 claim an “inherent authority” to enforce federal criminal laws. The purported authority stems from the Tenth Amendment46: one sovereign has the authority to assist another sovereign in arrests and, since states retain their sovereignty under the Constitution, they have the power to arrest for violations of federal criminal law.47 Additionally, states often enact laws that target immigrants and allow officers to regulate immigration. For instance, many states have “human smuggling” laws that prohibit transporting consenting unauthorized immigrants into the state.48 Others restrict undocumented-immigrant employment. Arizona, for instance, amended its identity theft laws to criminalize the use of false information to get a job, whether the identity belonged to a “real or fictitious person.”49 And some states and cities target the jobs that immigrants can get.50 Together, inherent arrest authority and independent state laws mean police target and detain suspected immigrants and their communities without the authorization or oversight of the federal government.
At the most basic level, there are now more federal and state laws governing migration and migrants, and more police — from federal to local officers — enforcing those laws than ever before. This policing is not immune from the problems afflicting other policing. Indeed, features of immigration enforcement exacerbate these problems.
B. Exacerbated Impunity in Immigration Enforcement
As immigration enforcement increasingly looks like criminal enforcement and is managed by the same actors, it is increasingly susceptible to the same abuses of discretion and the same impunity as other policing. Moreover, the unique nature of immigration enforcement exacerbates these problems. First, immigrants are entitled to fewer constitutional protections than citizens, and the dual criminal-civil nature of immigration law limits the applicability of constitutional protections further. Second, the structure of immigration law, as inherently racialized, political, and divided among multiple overlapping actors, limits accountability.
1. Police Discretion and Its Abuse. — While there are likely multiple causes of recent police violence, this section focuses on what can be done about such violence. A problem with policing is not only that police can perpetrate violence, but also that they can do so with limited or no accountability.
Policing requires discretion. It requires considerable discretion, by both departments and line officers, to determine which laws to enforce and against whom to enforce them. The federal law includes more than 3000 crimes.51 States criminalize thousands of additional acts. In the words of Professor William Stuntz, Americans are moving toward “a world in which the law . . . makes everyone a felon.”52 And it requires considerable discretion to determine how officers will enforce those laws. “[P]olice officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”53 They make these judgments before the background of violence against the police.54 These judgments and the context in which — and the background against which — they are made, are the reasons why Professor Stephen Carter warns his first-year law students “never to support a law they are not willing to kill to enforce.”55 Abuses arise within these categories of discretion. Police can set the wrong priorities. Communities can be disproportionately targeted. And police can enforce laws with excessive force.
In balancing the police’s need for discretion and victims’ rights to a remedy, the legal system weighs in favor of the police. In the criminal system, prosecutors use special investigations, deploy special grand juries, and exercise discretion not to indict officers who have allegedly violated the law.56 There are no comprehensive analyses of police killings in the United States.57 Twenty-six hundred police homicides were reported to voluntary databases between 2005 and 2011.58 This number likely undercounts actual police homicides over the same period by hundreds.59 All of these killings were reported as “justified,” and the data suggest officers rarely faced trial. For 2600 reported homicides, there were forty-one charges of murder or manslaughter.60
The civil system is similarly tilted against victims. It is almost impossible to get injunctive relief against police departments and officers because the Supreme Court has substantially narrowed the class of victims who can get such relief.61 It is equally difficult to get money damages against police departments and officers. Certain government officials are absolutely immune from civil litigation for damages.62 Police have “qualified immunity” — they cannot be sued unless they have perpetrated an especially egregious wrong.63 To be liable, the officer must have so clearly violated a constitutional right “that any reasonable official in the [officer’s] shoes would have understood that he was violating [the right].”64 The violation must have been “beyond debate.”65 These requirements place a high hurdle in front of recovery. The cumulative effect of low criminal indictment and civil recovery rates is an accountability deficit.
2. Impunity in Immigration Policing. — At the highest level of generality, the broad sweep of immigration laws and the force of law accorded to enforcement officers open immigration enforcement to the same abuses of discretion as other forms of policing. Developments in immigration policing, however, have so fundamentally altered immigration enforcement that it is no longer possible to discuss policing without understanding police’s impact on immigrant communities. Indeed, immigrants are uniquely vulnerable to abuse, whether police enforce the civil or the criminal provisions of the immigration law. This vulnerability stems from constitutional and structural features of immigration enforcement.
(a) The Limits of Constitutional Protection. — Many constitutional protections have limited force for immigrants, due both to doctrinal developments and practical realities. As a matter of doctrine, constitutional prohibitions on unreasonable searches and seizures and certain checks against constitutional violations (like access to a trial, the production of evidence, and rights to counsel) do not apply in civil enforcement. The Constitution does apply, however, in the strictly criminal regime.
Officers enforcing immigration law can raid work sites,66 target day laborers,67 or set up checkpoints in public housing units. During these raids, they can factor in race,68 and they can arrest without individual probable cause,69 whereas arrests normally require “evidence which would ‘warrant a man of reasonable caution in the belief’ that a felony has been committed.”70
Criminal enforcers are more limited. Though the Fourth Amendment’s restriction on unreasonable searches and seizures has been read to allow significant police discretion,71 it ostensibly checks police conduct.72 However, not every police-civilian interaction is a constitutionally limited “seizure.” The line between constitutionally limited “seizures” and “consensual” encounters is a thin73 but extremely important74 one. Without the Fourth Amendment’s restrictions on searches and seizures, the constitutional bases of analysis change, ultimately affording policymakers and officers greater discretion. As Professor Kevin R. Johnson characterized it:
Noncitizen racial minorities, as foreigners not part of the national community, generally have been subject to similar cruelties [as citizen racial minorities] but also have suffered deportation, indefinite detention, and more. The differential treatment is permitted, if not encouraged, by the disparate bundles of legal rights afforded domestic minorities and noncitizen minorities.75
In any case, doctrinal divisions melt away in practice. The interchangeability of the civil and criminal immigration-enforcement regimes limits the protection of constitutional rights in both contexts.76 Criminal law goals have infiltrated civil removal without bringing criminal law protections. The Fourth Amendment exclusionary rule does not protect people in the immigration-enforcement regime.77 In other words, even if police misconduct bars criminal prosecution, an exonerated defendant can be funneled into civil detention and removed.78 Deportation is not considered a punishment,79 so there is no right to counsel in immigration proceedings.80 And in any event, most immigrants never get the removal hearings where these constitutional rights could (but do not) apply. In 2013, the United States deported 438,421 people.81 More than 363,279 of those deportations — eighty-three percent — occurred without a hearing: deportees never saw an immigration judge, and the “immigration officer acted as the prosecutor, judge, and jailor.”82 A police force that wanted to, then, could abuse investigation and arrest authority to funnel immigrants into removal proceedings with impunity.83
Far from introducing criminal law protections into civil removal, the merger of the two systems has diminished the significance of criminal law protections in criminal prosecutions. Innocent or guilty, arrested immigrants have strong incentives to plead guilty. The Fourth Amendment allows warrantless arrests based on probable cause of any crime, including a misdemeanor.84 Every immigrant arrested anywhere in the United States has his or her information run through federal immigration databases.85 ICE can then choose to initiate removal proceedings. If the arrestee is convicted of certain offenses, removal becomes mandatory, and prosecutors can use immigration consequen-ces as leverage to secure alternative pleas.86
Further, criminal immigration enforcement now relies on truncated procedures. Under “Operation Streamline” — the “zero tolerance” approach to immigration — fast-track pleas offer immigration-crime defendants a reduced sentence in exchange for quickly consenting to removal.87 Within this scheme, discovery is provided, and a preindictment plea offer made, within twenty-four hours of arraignment.88 To cope with the volume of cases, defense counsel represent from six to as many as forty defendants at a time.89 And Streamline proceedings are group proceedings. Courts take guilty pleas en masse, with between forty and eighty men and women, shackled hand and foot, pleading together.90 Though pleas must be knowing, intelligent, and voluntary, courts have blessed Streamline group pleas.91 Under these conditions, police abuses — if they occur — are unlikely to be unearthed. Defense counsel are unlikely to discover abuses, arresting officers and witnesses are unlikely to testify, busy prosecutors are more likely to drop cases than to argue constitutional claims, and migrants are unlikely to bring civil suits after prosecution and removal.92 Together, this means that, even in the criminal-immigration context, constitutional claims are unlikely to be litigated and officers are unlikely to be held accountable for wrongdoing.
(b) Structural Barriers to Accountability in Immigration Enforcement. — The structure of immigration enforcement adds significant barriers to police accountability. First, disaggregated enforcement — enforcement by federal, state, and local officers under federal, state, and local laws — unfetters line-officer discretion. The federal government, posits one line of doctrine, cannot commandeer state and local officers. State and local governments, posits another, are limited in their capacity to make immigration policy. These competing doctrines complicate policymaking and, rather than reduce enforcement, unbind individual officer discretion.93
Second, disaggregated enforcement complicates public and private checks on police discretion. It is difficult in the current regime to assign responsibility for particular enforcement policies or decisions.94 Assigning responsibility is crucial to both political and legal accountability. Courts can enjoin only policies.95 Within that limitation, courts are “reluctant to enjoin law enforcement agencies[, which are] entitled to ‘the widest latitude in the “dispatch of [their] own internal affairs.”’”96 They are especially reluctant to do so when “the exercise of authority by state officials is attacked” in a federal court.97
Finally, disaggregated enforcement frustrates police-community relations. Public safety depends on public trust in the police,98 and Latino communities trust police less now that police increasingly perform the functions of federal immigration officers.99 Fragmented enforcement allows police to enforce immigration law and potentially alienate Latino and immigrant communities. Worse, it reduces police control over that relationship. Imagine a local government believes that safe, employed, and housed immigrants benefit a town more than immigrants who fear police interaction, are unauthorized to work, and are unable to rent housing. The local government may try to structure its relationship with immigrants accordingly, but that relationship can be undercut by factors outside its control. If the county feels differently about immigrants’ rights than the city does, the county police can subsume municipal police jurisdiction. State police can subsume county jurisdiction. And federal jurisdiction is pervasive; as demonstrated when sixty heavily armed county deputies raided the City Hall in Mesa, Arizona to detain employees without the city’s knowledge or control,100 the conflict is not hypothetical. Enforcement regimes overlap as means to competing ends, frustrating one another.
Limited constitutional protections and structural barriers to accountability and reform widen the gulf between police power to do harm and victims’ access to a remedy.
C. Consolidation of Immigration-Enforcement Policymaking as a Way Forward
This Chapter offers enforcement consolidation as a first step toward bridging the gulf. Though the proposal addresses directly only the structural barriers to accountability, there are reasons to believe it can revitalize constitutional protections for immigrants. Part of the failure of constitutional protections arises in practice, and practice arises in part out of structural features of the immigration-enforcement regime.101 Local policymakers can internalize the benefits and externalize the costs of immigration enforcement. This accounts for the gap between the perception of immigrant criminality and the “substantially higher [enforcement for total, violent, and property crimes] in places with greater proportions of immigrants,”102 and the reality that there is no connection between immigrants — including undocumented immigrants — and crime.103 Consolidation creates a single, nationally salient policy that can be monitored and challenged by a national constituency. For instance, national politics has successfully shifted federal enforcement priorities104 and increased limitations on federal immigration police. As a result, the Obama administration is considering placing body cameras on enforcement officials,105 restricting racial profiling in general policing,106 and reassessing its state and local police militarization programs.107 It is more difficult to monitor local policies, and to extract such concessions on a piecemeal basis. Moreover, a policy, and especially a national policy, can more easily be enjoined; federal immigration police have “no discretion with which to violate constitutional rights.”108 Thus federal litigation secured a settlement in which federal enforcement officials agreed to follow the Fourth Amendment in immigration sweeps.109 By removing barriers to transparency and accountability and creating opportunities for political and legal reform, enforcement consolidation is a powerful first step toward checking the immigration police. Without consolidation, efforts toward reforming police policy and checking police behavior are unlikely to succeed and, at best, reforms will come at a greater cost.
Section 1 offers the legal arguments. Section 2 identifies the limits to these arguments — the federal executive may reclaim the immigration-enforcement power, but it cannot obligate state and local police to enforce alongside it.
1. Independent State and Local Immigration Policing Violates Constitutional Immigration-Federalism. — Litigation based on constitutional separation of powers is one means toward consolidation. It is a “fundamental principle of the Constitution [] that Congress has the power to preempt state law,”110 and that power is particularly strong with reference to immigration regulation.111 Congress may preempt state laws in a number of ways.112 It may do so even in legal areas traditionally regulated by states.113 The federal government’s “undoubted power over the subject of immigration and the status of aliens”114 rests on the constitutional authority to establish a national naturalization rule115 and on the sovereign authority to conduct foreign relations. This section will describe two categories of state immigration enforcement and argue that laws within these categories can be preempted.
(a) State “Inherent Authority” to Enforce Criminal Immigration Laws. — State and local police generally may enforce federal criminal laws.116 That “inherent authority,” though, is subject to congressional preemption — state and local police cannot enforce federal criminal laws if doing so counters federal purposes.117
State enforcement of criminal immigration law, unless authorized by the federal government, may impermissibly distort federal immigration-enforcement policies. The most thorough analysis of states’ inherent authority to enforce criminal immigration laws is the Ninth Circuit’s decision in Gonzales v. City of Peoria.118 The Gonzales court found that, though the civil provisions of the Immigration and Nationality Act constituted a pervasive regulatory scheme — thus preempting parallel state regulation — the criminal provisions of the Act did not.119 Yet changes to immigration law have undercut Gonzales’s foundation. It is not only that federal criminal-immigration law is pervasive in a way it was not in 1983,120 but also that criminal immigration enforcement distorts civil-immigration regulation.
Today the line between criminal and civil immigration enforcement — the boundary on which the Gonzales court relied — is blurrier than ever before. Criminal arrests, whether or not they are based on federal immigration priorities, and even if they do not result in a criminal charge, open the door to civil removal. The distortive effect of state and local enforcement is clear as an empirical matter. In 2010, for instance, ICE placed detainers on nearly four times as many people arrested by state and local police as people it arrested itself.121 According to one empirical analysis, police — more than federal prosecutors or judges — have the “discretion that matters” in immigration enforcement.122 They determine who gets deported.
Police discretion is not the end of the process — federal officials retain the final say — but its distortive effect is constitutionally troubling. Either immigration officials do not deport after police arrest, or immigration officials do deport notwithstanding federal enforcement priorities. In the former case, local policing harasses immigrants in a way that infringes on the federal government’s plenary immigration-enforcement power.123 In the latter, state and local policing effectively overtake the federal government’s enforcement discretion. This overtaking may occur gently, by political forces.124 Or it may occur bluntly: some crimes lead to mandatory detention and mandatory deportation. Knowing this, some immigrants will either “believe it futile and not worth the cost to contest minor criminal charges while detained, even if they are innocent, have strong defenses, or have been arrested through racial profiling or other constitutional rights violations,”125 or waive their right to contest their removal in a plea agreement.126
The foundational assumptions of inherent authority are thus no longer true in the immigration-enforcement regime. Courts should reconsider the role of state and local police in immigration enforcement.
(b) State Human Smuggling Laws. — Human smuggling laws are a common means by which states indirectly regulate immigration.127 Texas’s and Arizona’s laws are representative of other states’ laws. Both make it a criminal violation to facilitate the transport of undocumented immigrants for profit or commercial purpose. Both also share the purpose of bolstering or supplanting federal immigration enforcement. Texas — without the request or authorization of the federal government — patrols the border with armed guards.128 “[W]hile Texas taxpayers should not have to bear the burden of fulfilling the federal government’s responsibility to secure the border,” said a spokesperson for then-Governor Rick Perry, “we cannot wait for action while our border remains porous and our communities are at risk.”129 Arizona similarly enforces its anti-smuggling law. “I’m the only agency enforcing this law because it is the law,” said Maricopa County Sheriff Joe Arpaio.130 “I’m going to put tents up from here to Mexico if I have to to keep these illegals incarcerated.”131
Though both Texas’s and Arizona’s laws tread into a field extensively regulated by the federal government, there have been very few challenges to their legality. Of the handful of court decisions that have addressed the Arizona law — none have challenged the Texas law — only one lower court decision,132 from November 2014, has found the law to be preempted.133 The permissibility of these laws should be revisited in light of developments in immigration law.
First, federal immigration regulation is sufficiently extensive to preempt state regulation in the field. “[E]ven complementary state regulation is impermissible,” said the Supreme Court in Arizona v. United States,134 if the federal government has its own comprehensive regulation.135 The federal government has such comprehensive regulation. The Immigration and Nationality Act thoroughly addresses the transportation and harboring of unauthorized immigrants. In relevant part, it provides that any person who “knowing . . . of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise” shall be punished.136 Federal law “makes a single sovereign responsible” for investigating, arresting, and detaining people arrested at the border.137 Human smuggling laws, by which states generate independent authority to prosecute offenses criminalized by the federal government, “diminish[] the [Federal Government]’s control over enforcement” and “detract[] from the ‘integrated scheme of regulation’ created by Congress.”138
Second, federal law is comprehensive as to the manner of enforcement. The United States Border Patrol employed 21,444 agents in 2011, more than double the 9212 agents employed in 2000 and more than five times the 4028 agents on duty in 1993.139 The number of agents does not include other CBP officers, ICE enforcers, Drug Enforcement Agency enforcers, Federal Bureau of Investigation agents, or Bureau of Alcohol, Tobacco, Firearms and Explosives personnel who also operate at the border. When states determine to interject their officers into this enforcement scheme, they make a political judgment with consequences for individual rights and, in turn, federal foreign relations prerogatives. State enforcement can, like all enforcement, become violent. And state enforcement can increase violence into the future. Increased border enforcement efforts have “change[d] the nature of the problem along the Mexico-United States border from one of irregular immigration to one of smuggling of migrants.”140 As immigration restrictions continue to increase, “the sophistication and violence of the organizations that promote the illicit movement of people across borders — whether in the form of smuggling or trafficking — have also grown.”141 Comprehensive federal enforcement provides one basis for preemption. Preventing the externalities caused by state enforcement provides another.
2. The Limits of Federal Preemption and Residual State Power. — To consolidate immigration enforcement in the federal government is not to say local governments have no motivation to control nor power to determine their relationships with immigrant communities. Local governments can choose not to enforce federal immigration law — they can effectively pass certain kinds of sanctuary laws142 or limit the enforcement of Secure Communities detainers.143 Consolidation thus improves immigration policing and functions as a one-way ratchet — the arguments in the Chapter cannot be used to increase immigration enforcement. The federal government is less interested in prohibiting, and state and local governments are more interested in preserving, state and local nonenforcement power, and these interests influence the preemption analysis.
The federal government is more interested in prohibiting state and local immigration enforcement. The harms to the federal division of power present in local immigration policing are not present in local immigration nonenforcement. State and local police do not abuse rights and harass if they are not enforcing. They do not funnel immigrants into the federal removal system if they are not enforcing. And states and cities internalize whatever harms of nonenforcement might exist.
To the extent nonenforcement impairs federal enforcement prerogatives, it does so in a constitutionally valid way. In Printz v. United States,144 the Supreme Court struck down as unconstitutional a federal requirement that local police run background checks on handgun purchasers.145 As the Supremacy Clause allows the federal government to preempt state laws, the Tenth Amendment prohibits the federal government from “command[ing] the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”146 The Court’s holding bars any federal effort to enlist state and local police, which includes efforts related to immigration. Such enlistment would threaten “structural protections of liberty” by “augment[ing] immeasurably” the “power of the Federal Government.”147
The federal government is less interested in preventing state and local nonenforcement, and state and local police are more interested in preserving their power not to enforce. While immigration regulation is a federal concern, states — and especially counties and cities — regulate police-civilian relationships.148
In short, state and local entities cannot keep ICE out of their jurisdictions, but they can keep their police and their jails from doing the work of the federal government.149
D. Conclusion
The federal prerogative in immigration enforcement is inextricably interlinked with the treatment of immigrants and their communities. Over time, the Supreme Court has identified independent roots for the federal government’s exclusive control over immigration. The federal government’s “undoubted power over the subject of immigration and the status of aliens”150 rests partly in the sovereign’s authority to control and conduct foreign relations. With regard to the laws police enforce and where they enforce them, the Supreme Court has noted the importance of foreign communication about the “status, safety, and security of their nationals” with one national sovereign, rather than with the “50 separate States.”151 And with regard to the manner of enforcement, the Court has said that immigration enforcement “can affect . . . the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.”152 Through this lens, immigration enforcement affects not only individual rights but also the structure of constitutional separation of powers and dual sovereignty.153
Consolidation is an important first step toward protecting immigrants’ rights and the rights of the communities they live in. As a first step, the proposal is necessarily limited. Immigration officials will continue to enforce harsh laws. They may continue to do so with little regard for the system — criminal or civil — in which they are operating. And they may continue to do so violently. But consolidation is a first step in a larger movement toward reform. It permits a single policy to determine what laws may be enforced and how. That national policy will be more transparent than thousands of disparate enforcement policies. It will be subject to political and legal checks. It can be reformed alongside other efforts toward improving the structure of police accountability. The step is thus worthwhile.