Immigration Federalism: Which Policy Prevails?

 

In the lead-up to the 2012 US presidential election, a major point of contention between Republican and Democratic candidates has been the division of responsibility for immigration policy and enforcement between the federal government and states. This is not surprising. When viewed through the local law enforcement lens, the current arrangement looks more like a patchwork of overlapping and potentially conflicting authorities than a systematic nation-wide approach to immigration enforcement. This article examines the challenges resulting from these recent trends in immigration enforcement, based on two national surveys, one of city police chiefs and one of county sheriffs, and three case studies (Mesa, AZ; New Haven, CT; and Raleigh, NC). The article provides data on the impact of devolution of immigration powers to the local level and the growing involvement of local police in immigration enforcement. Ultimately, it argues that a multilayered jurisdictional patchwork has emerged, in which overlapping and neighboring jurisdictions can, and do, adopt conflicting policies and practices vis-à-vis their immigrant populations.

Enforcement of the nation’s immigration laws was once firmly under federal control, with local law enforcement playing an occasional supportive role upon request. That has changed. The federal government began to devolve enforcement power to the local level in 1996, offering to train officers in police departments and other local law enforcement agencies to arrest and screen suspected unauthorized immigrants. More recently, state laws have been adopted that require local police to assist in immigration enforcement. The US Supreme Court recently examined one of these laws, Arizona’s SB1070, declaring some elements of the law beyond the state’s power to enact, but leaving in place the section mandating that officers, while enforcing other laws, question the immigration status of those they suspect are in the country illegally. The situation has grown more complicated with the nearly completed rollout of the federal Secure Communities Rrogram, which links local jails to federal immigration databases to facilitate the identification of people in the country illegally.

 

Devolution became federal policy in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which included a clause known as section 287(g) that invited state, county, and city law enforcement agencies to sign partnerships with the federal government to enforce civil violations of federal immigration law. There were no 287(g) agreements signed prior to the 9/11 attacks, but currently 63 agencies, at various levels, participate in the program, which has trained approximately 1,300 officers to enforce immigration law. This represents only a tiny portion of local police and sheriffs departments in the country, a reminder that under the Constitution, federal authorities can only invite, not mandate, new law enforcement duties at the state and local level.

The Complex Patchwork of Enforcement Efforts: Which Policy Prevails

The debate over how to engage with the federal immigration enforcement effort is being conducted with widely variable outcomes. Many large cities, for example, oppose enforcement partnerships with the federal government, but they operate within a jurisdictional network that subordinates their policymaking powers to the state. Sheriffs, who exercise considerable power over their entire county, add additional complexity. Due to a lack of coordination between the various policymaking bodies, immigration enforcement has the potential for cross-jurisdictional conflict and overlap, resulting in uncertainty among immigrants about which policy prevails. Overlapping enforcement authority also constrains localities as they seek to balance enforcement options against commitment to community policing. These factors provide individual officers with substantial discretion. We dub this outcome a “multilayered jurisdictional patchwork” (MJP) of enforcement authority: a confusing and often contradictory geography of immigration enforcement in the United States.

The trend toward devolution of central authority to the local level is a product, among other things, of illegal immigration flows that increased rapidly during the 1990s and early 2000s, and the national government’s limited capacity to control these flows. Thus, the trend toward shared responsibility is not surprising: federalism is a familiar solution to the problem of limited governing capacity. The three levels of government cooperate on a variety of issues to achieve broad goals. For a long time, however, immigration policy did not follow this shared governance pattern.

The recent emergence of immigration federalism raises concerns that are absent in other shared governance areas. The devolution of immigration enforcement from federal to local authorities threatens to disrupt fragile trust, nurtured over the years, between local law enforcement and immigrant communities. Overlapping, independent local law enforcement agencies create other hazards for federal policymakers.

Immigration federalism, defined as the role of the states and localities in making and implementing immigration law and policy, has become an increasingly relevant issue. Contemporary scholarship explores two emerging dynamics: (1) the devolution of immigration authority to subnational jurisdictions, authorized in 1996 by IIRIRA and the 1996 welfare reform law formally known as the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), and (2) the recent explosion of grassroots immigration policies and enforcement practices.

Legal scholars are divided between those arguing for and against the constitutionality and desirability of immigration federalism. Peter Spiro, an early proponent of immigration federalism, argued for “steam valve federalism” in immigration policymaking, and also supported state-level immigration policy activism. Under steam valve federalism, the pressure on the federal government to pass a potentially undesirable national-level policy is lowered by allowing localities to determine their own enforcement approach. Some scholars suggest that immigration policymaking at subnational levels will not necessarily be hostile to immigrants, while others view the devolution of immigration policing authority as a crucial force multiplier in the war on terror, because only roughly 2,000 US Immigration and Customs Enforcement (ICE) agents were assigned to interior enforcement as of 2009.

Other scholars are principally concerned that devolution and grassroots immigration policy activism together have opened the door to discrimination against noncitizens. They view the devolution of federal authority as an erosion of the traditional barrier, imposed by the 14th Amendment, against state and local discrimination on the basis of national origin. Under immigration federalism, immigrants are much more at the mercy of the discriminatory powers of the local state.

 

Evidence of Immigration Federalism from Two National Surveys

We draw upon data from two surveys of local law enforcement executives: police chiefs from large and medium-sized cities in 2007–08 and county sheriffs surveyed in 2009–10. The city survey was sent to 452 police chiefs in cities listed in the 2005 American Community Survey as having 65,000 or more residents. These 452 represented the universe of chiefs in cities of this size that have their own police departments. We ultimately secured a 52.4 percent response rate (237 cities).

We surveyed sheriffs in counties that met two criteria: (1) at least 6 percent of the population was foreign-born, as of the 2000 Census, and (2) the county contained at least 20,000 total residents. We added seven counties that were slightly below the 6 percent threshold but had at least 25,000 foreign-born residents as of 2000. Of the 449 counties selected (roughly the same number as big-city chiefs), 252 provided usable responses, a response rate of 56.1 percent.

County sheriffs are unique because they are both administrators (as head of a county agency) and politicians (since 97 percent in our survey are directly elected). Ninety-one percent of county sheriffs surveyed say that they engage in patrols and investigations in unincorporated areas, and sometimes within incorporated cities; 83 percent also run the county jail system. In our sample, 78 percent handle both functions. County sheriffs are also more likely to formally cooperate with federal authorities, partly because of their jail supervisory responsibilities. Even before the advent of Secure Communities, many county jails routinely asked about immigration status at the time of booking. Thirty-six percent of the sheriffs surveyed have memoranda of understanding (MOUs) with ICE to help manage unauthorized incarcerated immigrant detainees. The corresponding percentage for municipal police departments is 3 percent. Fifteen percent of sheriffs provide for federal training of local law enforcement personnel to cooperate in making investigations or arrests for civil immigration violations. The comparable percentage of city police departments is 3 percent. Twenty percent of sheriffs report that they have ICE officers embedded in one or more of their units, compared to 7 percent of cities surveyed.

 

 

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