HONOLULU, Hawaii – (March 6, 2018) – Today, the Hawaii Senate passed a bill to end state cooperation with enforcement of some federal immigration laws.
A coalition of three Democrats introduced Senate Bill 2290 (SB2290) in January. The legislation is similar to the TRUST Act passed in California and Connecticut in 2013. The legislation would prohibit state law enforcement agencies from complying with federal immigration detainers unless specifically required to do so by a warrant signed by a judge.
SB2290 passed the Senate by a 23-2 vote.
The bill would allow law enforcement agencies honor a federal immigration detainer order without a warrant if the individual has been convicted of a felony or certain misdemeanors, if the individual was arrested on a felony charge and a judge has issued a ruling of probable cause, if there is probable cause to believe the individual has or is engaged in terrorist activity, or if there is probable cause to believe the individual illegally entered the U.S. after deportation.
The bill would bar state and local police from stopping, questioning, interrogating, investigating or arresting an individual based solely upon their actual or suspected immigration or based on a civil immigration warrant, administrative warrant, or immigration detainer in the individual’s name, including those identified in the National Crime Information Center database.
SB2290 would also prohibit law enforcement officers from asking crime victims, witnesses or individuals who call or approach police asking for assistance about their immigration status.
While the law will not allow state agencies to directly interfere with federal immigration enforcement, it will leave the enforcement of some federal immigration law to the federal government in most situations. This would likely make it more difficult for the federal government to enforce federal immigration law in Hawaii.
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 effective 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 a column in The Hill by Tenth Amendment Center executive director Michael Boldin.
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 SB2290 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.
SB2290 will now move to the House for further consideration.