Lost in the press coverage of the executive orders on immigration signed by President Trump in his first week in office is the extent to which, on several fronts, the president is intending to pull states and localities into immigration enforcement, both at the border and in the nation’s interior. The conflict between states and the federal government on immigration policy has been on display in several areas over the last decade, and has been seen most recently in federal court cases brought by states against first President Obama and then President Trump over their executive actions on immigration. Congress has failed to pass legislative immigration reform, leaving states and localities to act, but the Trump orders would, by agreement or by coercion, put states and localities squarely in the middle of immigration enforcement in the United States. This week, Secretary of Homeland Security John Kelly signed two memoranda to the heads of the department’s immigration agencies implementing these executive orders, confirming that the department will immediately seek to engage states and localities for this purpose.
The first order signed by the president on January 25, 2017, “Border Security and Immigration Enforcement Improvements,” was significant for its instruction to the Department of Homeland Security (DHS) to “immediately” take steps to begin construction of the border wall. But the order also included several provisions that would authorize and empower state and local law enforcement agencies to help with securing the border as well as immigration enforcement in the interior.
Section 4(d) of the order mandates that DHS conduct a “comprehensive study of the security of the southern border,” including “the availability of Federal and State resources” necessary to achieve “complete operational control.” While the role of state and local law enforcement in working with federal officials to identify and apprehend unauthorized immigrants in the United States has been the subject of debate, it is usually unquestioned that the federal government has the responsibility for securing the international borders of the United States. Some states, notably Texas, have tasked state law enforcement with certain border activities, usually supporting Border Patrol. However, under this provision, confirmed in the Kelly memos, the administration intends to seek state assistance in providing resources to assist with securing the U.S.-Mexico border.
This inference is reinforced later in Section 12(a) of the order which authorizes the DHS Secretary and the Secretary of the Interior to “permit all officers and employees of the United States, as well as all State and local officers as authorized by the Secretary, to have access to all Federal lands,” to implement the order. Paragraph (b) of that section further authorizes the secretary to “enable those officers and employees of the United States, as well as all State and local officers as authorized by the Secretary, to perform such actions on Federal land as the Secretary deems necessary and appropriate to implement this order.” The House Committee on Natural Resources reports that approximately 20 million acres of federal land abut the U.S.-Mexico border, mostly in the states of Arizona, New Mexico, and California. There has been an ongoing battle between the Border Patrol and the Interior Department over access to these lands for decades, but the inclusion of state and local “officers” in the mandate to allow access to and enabling activities in these areas is unprecedented.
The most significant provisions in the executive orders would pull state and local law enforcement into cooperation with Immigration and Customs Enforcement (ICE) in interior enforcement. The provision apparently was so important to the White House that it was included, with almost identical language, in both the border enforcement executive order and the second order the president signed, “Enhancing Public Safety in the Interior of the United States.”
The provision, Section 10 of the border enforcement executive order and Section 8 of the interior enforcement order, states that “it is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.” In other words, Trump intends to make state and local law enforcement his deportation force.
The section specifically directs DHS to engage with governors and local officials to enter into so-called “287(g) agreements,” which are authorized under immigration law to allow the federal government to essentially deputize state and local officials as immigration agents. Originally created in a 1996 law, the agreements were first used during the George W. Bush administration, but mostly through agreements with state and local jails to interview suspects regarding immigration status and identify potentially removable persons to ICE. Other types of agreements—so-called “task force model” agreements—allowed state and local law enforcement work in task forces with ICE and other DHS officials on specific operations. Few agreements provided blanket authorization to act on behalf of ICE in apprehending or detaining foreign nationals in the interior. But broader agreements were used in the later years of the Bush administration. In the early years of the Obama administration, the existing agreements were renegotiated to focus more on targeted criminal priorities and increase federal oversight of local police. Eventually the agreements were scrapped in 2012 by the Obama administration, in part due to increasing pushback from states and localities to any involvement in immigration enforcement (leading to the appellation of “sanctuary cities”) but also after some jurisdictions, most infamously Maricopa County, AZ, under then-Sheriff Joe Arpaio, were charged with significant civil rights violations against Hispanic residents in the name of immigration enforcement.
In addition to the 287(g) agreements, the section states that the DHS Secretary can also authorize enforcement activities by state and local law enforcement outside of such agreements. “To the extent permitted by law, and with the consent of State or local officials, the Secretary shall…through agreements under Section 287(g)…or otherwise…authorize” such state and local officials to perform the functions of immigration officers. Finally, a provision in the border security order (the only difference in the language) adds that the Secretary can structure any agreements in such a manner to enforce Federal immigration laws “and obtain operational control of the border,” suggesting that the intention is to deputize state and local law enforcement as Border Patrol agents, not just ICE agents.
The conflict between states and the federal government on immigration policy has been on display in several areas over the last decade.
Combined with the efforts to punish sanctuary jurisdictions who fail to cooperate with immigration authorities in identifying and detaining removable immigrants, the implication of these orders is clear – states and localities will be pressured into assisting the federal government in enforcing immigration law. It should be noted that while many Border Patrol and ICE officials seek cooperation of state and local law enforcement for specific operations or identification of unauthorized immigrants, particularly those who might be criminals, there is skepticism in the agencies to full “deputization” of state and local cops who do not have the rigorous training in immigration law—nor the oversight—that federal agents do. In addition, since there will be no federal funding to cover these activities, many localities will be reluctant to spend a larger share of their strapped budgets on activities that are secondary to the primary law enforcement mission of their police. Finally, as was seen with previous times that local law enforcement took immigration enforcement as a role, there will certainly be legal action taken against tactics that violate civil rights. In short, it is unclear the extent to which these executive orders will increase the removal of unauthorized immigrants, but they are certain to cause significant controversy as they are carried out.
KEYWORDS: 115TH CONGRESS, ARIZONA, CALIFORNIA, DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION AND CUSTOMS ENFORCEMENT, JOHN KELLY, NEW MEXICO, PRESIDENT BARACK OBAMA, PRESIDENT DONALD TRUMP, PRESIDENT GEORGE W. BUSH, SANCTUARY CITIES