Texas and California: Two State Approaches to Federal Immigration Enforcement

Last week, California Gov. Jerry Brown put his signature on a bill to withdraw state resources from the enforcement of most federal immigration laws. While some people have argued this will open the door for immigrants to enter the U.S. through California and then spread into other states, the approach Texas took can minimize this problem.

Known as the “California Values Act,” the bill prohibits local law enforcement from using any resources to arrest, detain or hold people on behalf of federal immigration authorities in most situations. The proposed law would not allow state agencies to directly interfere with federal immigration enforcement. It would simply limit state involvement, leaving the job almost exclusively to the federal government.

Provisions in the California legislation withdrawing state and local enforcement of federal law 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 weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.

The anti-commandeering doctrine enshrines the constitutional division of power between state and federal spheres into constitutional law. But some people want the feds to rip this fundamental separation of powers down, and force state and local governments to cooperate with federal immigration enforcement.They argue that these so-called sanctuary policies will provide undocumented aliens a safe haven and from there they will spread into other states that don’t want them.

Texas offers the solution to this problem.

On Sept. 1, a law went into effect in the Lone Star State that bans localities from adopting policies that prohibit or restrict local agents from enforcing of federal immigration laws in most situations. The law effectively prohibits sanctuary cities. In other words, the policy in Texas is almost the exact opposite of the proposed policy in California. The Texas law represents a constitutional way to force cities to help enforce immigration laws.

Texas policy will discourage immigrants from settling in the Lone Star state. Think about it. If you had the choice between living in California, where you know you’re less likely to be detained and turned over to ICE, or Texas, where you know every local law enforcement agency will aggressively work to send you back to your home country, where would you stay? California law may well incentivize undocumented aliens to settle there. But the incentives in Texas work in the opposite direction.

Other states concerned California policy will result in an increase of undocumented aliens crossing into their state can simply follow Texas’ lead and use their resources to aggressively enforce federal law..

The constitutional system allows states to implement policies preferred by the majority in that political society.

Instead of asking the feds to force localities to enforce federal immigration law, Texas passed a state law to require political subdivisions of the state to enforce federal immigration law. Whether that’s good policy or bad policy for Texas is up to Texas. But it’s a decision for Texas, The same goes for California policy. It’s a decision for California.

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