ANNAPOLIS, Md. (March 20, 2017) – Today, the Maryland House of Delegates passed a bill to withdraw state participation from the enforcement of most federal immigration laws. Passage into law is far from certain, as the Governor has promised to veto the bill and the 83-55 vote in the House is two short of a veto-override.
Introduced by Del. Marice Morales (D-19, Montgomery County), House Bill 1362 (HB1362), known as the “Maryland Immigration and Community Trust Act,” would prohibit law enforcement agents from doing any of the following without a judicial warrant:
- Transfer a person to federal immigration authorities without a judicial warrant
- Detain a person solely for the purposes of federal immigration enforcement
- Notify federal immigration authorities of a person’s location or address
Gov. Larry Hogan quickly responded with a tweet condemning passage in the House and promising to veto the bill.
— Larry Hogan (@LarryHogan) March 21, 2017
While the bill is likely to pass by a wide margin in the Democrat-dominated Senate, the House tally is two votes shy of the 86 required for a veto-override.
The bill would not allow state agencies to directly interfere with federal immigration enforcement, leaving 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 Maryland.
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.
Provisions withdrawing state and local enforcement of federal law in SB54 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 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, HB1362 avoids confronting it directly by simply banning state and local officials from inquiring “about an individual’s immigration status, citizenship status, or place of birth during a stop, search or arrest.”
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.
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.”
HB1362 will now move to the Senate for further consideration.
Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.