29 March 2011 ~ 0 Comments

Should States and Localities Be Able To Opt Out of Secure Communities?

2_12_11 Immigrant Protest Against Secure Commu...

Image by openmediaboston via Flickr

Paging immigration and constitutional law experts.

The spread of the non-opt-out federal Secure Communities program raises a compelling constitutional question: Does the federal government have the right to coerce state and local officials to participate in Secure Communities?

That’s essentially what DHS is telling local and state officials right now.

Immigration is an area of federal pre-emption. Crime fighting is historically a state and local initiative. Basically, under Secure Communities programs, local and state officials are supposed to run all arrest-related fingerprints through a U.S. immigration database, identify the ones without legal status and hold them till ICE can place them in removal proceedings. Reports suggest that most of the people deported under Secure Communities were non-criminal aliens that were never convicted of a crime.

Congress cannot impose a federal regulatory scheme on states that force state officials to implement federal law (Printz v. United States). How is Secure Communities not a federal regulatory scheme to manage immigrant populations in jails and prisons that requires not just compliance, but implementation of a program?

I’m sure local and state jurisdictions are unlikely to protest the legality of the program because they receive lots of money from DHS for implementation of the program. And most professional immigration reform advocates don’t really care about Secure Communities and detention practices. The ones who do care enough don’t really understand the law and probably don’t have an interest in spending any time on this. I do hope someone can answer my question beyond just arguing that Secure Communities requires only compliance and not implementation, and hence it is legal.

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