Deconstructing the New DHS S-Comm Announcement

“ICE has determined that a [memorandum of agreement] is not required to activate or operate Secure Communities for any jurisdiction” — Director John Morton in letter to states saying no agreement is necessary on their part for S-COMM.

I read through press releases from major immigration advocacy groups and each statement failed to analyze why DHS came out with this announcement.

Most immigrant rights advocates simply don’t understand how S-Comm works. There’s actually no opting out of the growing archipelago of federal surveillance. But we also regretfully need legal professionals to explain the eleventh hour announcement.

In lawsuits filed against the Secure Communities programs, DHS has been pressed to show how it is not imposing on states’ rights and to clarify whether the program is truly optional. If Secure Communities is a regulatory program imposed upon local and state jurisdictions, then it is constitutionally suspect. Lately, DHS has been pushing the idea that S-Comm has nothing to do with agreements between state and federal governments in order to avoid the main argument behind the lawsuits.

ICE Director John Morton stated at the AILA Conference that there is a “fundamental misconception about Secure Communities is that somehow the program involves an agreement by the state for the exercise of federal immigration authority.” Principal Legal Adviser of ICE, Peter Vincent, also argued that the program does not even require local cooperation but upon the fingerprinting of a person in custody, the data is shared between two federal branches of government — the FBI and DHS. This latest announcement is just a culmination of those statements that serves a legal purpose: S-Comm is simply a federal program requiring no local or state cooperation.

Detaining and deporting thousands of undocumented immigrants on minor infractions does not affect the constitutionality of Secure Communities. Infringing on local and state authority does render the program unconstitutional. Nullifying all existing agreements and contracts is a clever legal step. Legal advocates will have to figure out a new strategy to stop the spread of the mandatory surveillance program.

In the meantime, it is advisable to go the way of San Francisco. No local and state cooperation should mean precisely that.

Watch this space for when our national advocates agree to S-COMM in exchange for a moratorium on DREAM-Act deportations and call it a victory.

I’d rather get deported.