federalism

ICE Deputizes More Cops for Immigration Enforcement

Yesterday Immigration and Customs Enforcement (ICE) announced that eighteen counties in Texas are taking part in the 287(g) program. The program allows police departments to enter into agreements with ICE, thereby permitting their officers to carry out certain federal immigration enforcement functions. The news from Texas is the latest evidence that President Trump’s campaign pledge to “expand and revitalize” 287(g) was a serious commitment, not political bluster. The expansion of 287(g) is a worrying development. The program has been widely criticized for harming police-community relationships and prompting racial profiling. It also grows the power of the federal government, which traditionally has not played a major role in state and local law enforcement.

287(g) was, until a few years ago, a program that had three models: Jail, Task Force, and a Jail/Task Force hybrid model. The Jail agreements allow participating officers to check an individual’s status in a detention facility and issue detainers. Using detainers, officers can hold individuals 48 hours longer than they usually would so that ICE can pick them up. The Task Force model allowed officers to carry out immigration enforcement in the field such as questioning and arresting people suspected of violating immigration law. At the end of 2012 the Obama administration announced that the Task Force 287(g) model would be scrapped, with ICE declaring that other programs “are a more efficient use of resources for focusing on priority cases.”

The Department of Homeland Security (DHS) Office of Inspector General (OIG) raised concerns related to 287(g) in a 2010 report, which stated:

NGOs critical of the 287(g) program have charged that ICE entered into agreements with LEAs that have checkered civil rights records, and that by doing so, ICE has increased the likelihood of racial profiling and other civil rights violations.

Claims of civil rights violations have surfaced in connection with several LEAs participating in the program. Two LEAs currently enrolled in the program were defendants in past racial profiling lawsuits that they settled by agreeing to collect extensive data on their officers’ contacts with the public during traffic stops, and adopt policies to protect the community against future racial profiling. Another jurisdiction is the subject of (1) an ongoing racial profiling lawsuit related to 287(g) program activities; (2) a lawsuit alleging physical abuse of a detained alien; and (3) a DOJ investigation into alleged discriminatory police practices, unconstitutional searches and seizures, and national origin discrimination.

The DHS OIG report was correct to point out the criticism leveled at 287(g). As I’ve noted before, the American Immigration Council found that “287(g) agreements have resulted in widespread racial profiling.” According to the ACLU of Georgia, “The 287(g) program in Cobb and Gwinnett has encouraged and served as a justification for racial profiling and civil and human rights violations by some police officers acting as immigration agents.”

Jeff Sessions Pulls Back on Bullying Sanctuary Cities

Throughout his presidential campaign Donald Trump pledged to defund so-called “Sanctuary Cities.” Since his election the president and his administration have had to backpedal on this commitment thanks to serious constitutional issues with such a proposal. Recent news that Attorney General Jeff Sessions has narrowed the category of funds that can be withheld from sanctuary cities as well as the definition of sanctuary jurisdictions is good news for constitutionalists and federalists who oppose the federal government bullying cities and states.

Before unpacking Sessions’ recent memo it’s worth taking a look at the Trump administration’s actions against “Sanctuary Cities,” a term that has no legal meaning but is usually used to describe cities and localities where local officials have decided not to assist with federal immigration enforcement.

On January 25, President Trump signed Executive Order 13768: Enhancing Public Safety in the Interior of the United States. Section 9 of this executive order is the “sanctuary” section and reads, in part (emphasis mine):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

There is a good argument that 8 U.S.C. 1373 is unconstitutional. 8 U.S.C. 1373 is a prohibition on a prohibition, banning local governments from preventing police departments from sending or receiving immigration status information to or from federal immigration authorities. This law potentially runs afoul of the 10th Amendment’s “anti-commandeering” doctrine, which bans the federal government from compelling local officials into enforcing federal law.

Finding Victims for Trump Budget Cuts

A Washington Post story today about one of President Trump’s budget cuts reflects what can be called victim journalism. The story focuses on the proposed ending of federal funding for the Appalachian Regional Commission (ARC), which provides subsidies for economic development in selected states.

The States Have No Business Creating Their Own Retirement Accounts

People have lots of ways to save for retirement. Most employers offer some sort of retirement plan, of course, and people whose employers don’t can set up their own retirement account and get the same tax benefits, albeit without any employer contribution.  Low-income workers at a job without a benefit plan can now participate in Treasury’s new MyRA program, which creates a retirement account for the worker and provides a match for their contributions.

And Social Security, which totals to 15.3% of the first $118,500 of a worker’s income, constitutes a big chunk of most people’s retirement income.

Kasich Aims to Revive Federalism

The Republican congressional leadership has failed to articulate strong themes to counter the big-government policies of President Obama and the Democrats. People don’t know what the Republican Party stands for, partly because they rarely, if ever, see leaders such as John Boehner and Mitch McConnell on television presenting a coherent vision or a specific program of cuts.

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