Monday, June 27, 2011

Secure Communities and States' Rights

Many people who are pro-comprehensive immigration reform (CIR) usually get very upset when some states create laws which seek to identify illegal immigrants and turn them over for processing and presumed deportation by the Federal government.

The normal complaint by CIR partisans is that the states have no right legislating on immigration issues, that such things are the sole purview of the federal government and that to let states attempt to even address the state specific portions of this national problem, (increased costs for schools and hospitals, business licensing revocation, etc) is tantamount to accepting a "states' rights" constitutional interpretation with the negative baggage that such a charge implies. Federal Supremacy is the mantra of this group They tell us that only the Federal government has the authority to act. The states have NO BUSINESS attempting to preempt the Federal government, enforce federal law on immigration or resist Federal rules on immigration. What the Feds say or do goes. They are the Big Dogs on this issue.

So imagine my surprise when some states with more CIR-friendly governors or senators, gave a great deal of criticism and finally open resistance to the Federal Secure Communities Program. This is a program which mandated that states share fingerprints of arrested people with the FBI , which runs criminal background checks and shares the fingerprints with DHS/ICE for immigration violations. Massachusetts, Illinois and New York all announced that they would no longer participate in the Secure Communities program. In this they were supported and cheered on by the New York Times, which atypically wrote an ode to states rights.
Add Massachusetts to the groundswell of states and localities opposing President Obama’s misconceived and failing immigration dragnet.

Gov. Deval Patrick announced on Monday that his state would not participate in Secure Communities, the fingerprint-sharing program that the Obama administration wants to impose nationwide by 2013. Gov. Andrew Cuomo halted New York’s involvement last week. Gov. Pat Quinn of Illinois rejected it last month. They join a long list of elected officials, Congress members and law-enforcement professionals who want nothing to do with the program for the simple reason that it does more harm than good.
What these states’ actions mean, practically speaking, is unclear. States like New York signed contracts with the Department of Homeland Security to enter Secure Communities, and now the administration insists that they must participate. If they send suspects’ fingerprints to the Federal Bureau of Investigation for criminal checks — as states must and will continue to do routinely — then the F.B.I. will share that data with the Department of Homeland Security. There is no way to opt out.
We’ll see about that. The idea that the federal government can commandeer states’ resources for its enforcement schemes seems ripe for legal challenge.
WOW. Imagine that.  A state refusing to assist in enforcing and obeying Federal Law. Isn't this the EXACT sort of thing that the NYT and pro-CIR partisans normally get rather rabid about? This is the same NYT that previously wrote about Arizona: (emphasis added)

And although appeals are certain, Judge Susan Bolton offered clear and well-reasoned arguments affirming the federal government’s final authority over immigration enforcement.

Now the NYT writes "We'll see about that"? and "..ripe for legal challenge"? Who wrote this editorial, Lester Maddox? What are the reasons given for supporting this state rebellion on immigration enforcement? Was it some sort of liberal appeal to the 10th Amendment? A new found appreciation for a weak central government? A sudden attack of Jeffersonian principles?
The reason that some states were getting upset and finally refused to comply was that the program was actually working!!! People that had no legal right to be in the United States were being identified and processed for deportation-in accordance with Federal law. Some of these people were dangerous violent felons. Some weren't. But none of them had any right to be in the US. Period. The correct and legally authorized consequence is for the unlawful resident to be deported back to his country of origin. There can be no question that the Federal government has the right and the authority to do this.
However the Administration for what appear to be political reasons not so surprisingly sought a way to soften and maybe even neuter its own successful program. ICE director John Morton, released a memo reminding prosecutors and agents of their "discretion". Among other things that should be considered before detention or deportation were such things as:
  • the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child
  • the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States
  • whether the person, or the person's immediate relative,has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat
  • the person's ties and contributions to the community, including family relationships
The problem is that these qualifications look rather suspiciously like what was just voted down in the failed Dream Act. So this could be a stealth Dream Act, done administratively rather than via law.
There are costs to illegal immigration. I'm sure that several illegal immigrants are hardworking people just trying to make a better life for themselves. But that doesn't change the fact that the US simply can not accept everyone who would like to live in this country. There are over one billion people in the world that live on less than $1.25/day. Neither the US nor any other developed country can allow all of those people to enter, and certainly not without permission. And permission is what is key here.
Most people have some compassion. But few people would allow someone to enter their house without consent, set up shop and then shriek of injustice if you tried to force them out. That's the death of law. The states that are resisting Secure Communities don't appear to recognize the Federal right to control and regulate immigration. To quote my blog mate The Janitor
"States can't preempt federal programs.  At most they can refuse to take federal dollars altogether but for programs which are specifically executed by the federal government, a state cannot block those initiatives"
This shows me that at least some of the politicians, activists and media personalities that were caustically opposed to state initiatives on immigration didn't really care about federalism so much as they cared about stopping deportations. If people really want open borders and unlimited immigration and no deportations they should say so.
*The use of this quote should most definitely not be taken to mean that The Janitor agrees with this post. I just thought it was a really cool quote to use... LOL

What say you?
Is Secure Communities a good idea?
Should States be able to resist or opt out of Federal anti-illegal immigration programs?
Were the States of Illinois, New York and Massachusetts correct to protest that too many non-violent illegal immigrants were being identified and proccessed for deportation?
What's your solution to this issue?
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