New York Assembly Passes Bill to End Support for Most Federal Immigration Enforcement

ALBANY (Feb. 7, 2017) – Yesterday, the New York state Assembly passed a bill to withdraw state resources from the enforcement of most federal immigration laws.  Passage into law will likely have the effect of further nullifying those federal acts in practice and effect.

Introduced by Assemblymember Francisco Moya (D-Jackson Heights) and 49 other co-sponsors, Assembly Bill 3049 (A3049) was fast-tracked through two committees and passed by the full Assembly yesterday. The vote was

Known as the “New York State Liberty Act,” the bill would ban the use of state and local resources for the enforcement of federal immigration laws. Section 319-b of the bill is aptly titled, “Federal agencies to investigate and enforce federal immigration laws.”

EFFECTIVE

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.

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 my 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.

LEGALITY

Provisions withdrawing state and local enforcement of federal law in A3049 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.

EXECUTIVE ORDER

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. However, A3049 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.

NEXT UP

Should the Trump administration attempt to define “withdrawing support” the same as a policy that  “prevents or hinders,” it’s almost certain to be struck down by a court likely to uphold over 170 years of anti-commandeering precedent. However, Sec. 8 of Trump’s order seems to indicate that this outcome is unlikely.

Here, a policy is clearly laid out whereby the federal government intends to “empower State and local law enforcement agencies … to perform the functions of an immigration officer.” To achieve that goal the Secretary of the Department of Homeland Security (DHS) is directed to work with governors and local officials to “enter into agreements” to perform federal immigration enforcement duties. The order also includes a big caveat, the agreements will be made “with the consent of State or local officials, as appropriate.”

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.

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