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The SAFE Act and our Federalist System of Government


As the full Senate is debating a comprehensive bill reforming federal immigration laws, across the street today the House Committee on the Judiciary was busy with a bill, the SAFE Act, which would have states enforce our immigration laws while the federal government foots the bill.  

As I have written earlier, under current laws and regulations, state and local law enforcement are encouraged to cooperate with Immigration and Customs Enforcement through the "Secure Communities" program, but not all police forces choose to do so.  As California Attorney General Kamal Harris stated in an informational bulletin on Secure Communities: "Under principles of federalism, neither Congress nor the federal executive branch can require state officials to carry out federal programs at their own expense."

The SAFE act would deny Homeland Security funding to any state or municipality which does not adequately cooperate with ICE, and also deny such funding to any jurisdiction with a "statute, policy, or practice" barring cooperation with ICE.   Thus, "sanctuary cities" such as Chicago an New York would lose millions of dollars used for terrorism prevention, disaster preparedness, and port security if they do not start turning over traffic violators to ICE.

Proponents of the bill will no doubt argue that these provisions do not violate the Tenth Amendment because they are not mandates so much as financial inducements to compliance, which the Supreme Court has allowed in other contexts, such as tying highway funding to a state's legal drinking age.  However, current "sanctuaries" such as Cook County, Illinois, New York City and others are sure to challenge this provision should it become law. 

More troubling than the attempt to mandate cooperation from the states, however, is the provision at Sec. 108 of the SAFE act which would require the Department of Homeland Security to be at the beck and call of every police force in the nation, ready to lock up any and all suspected illegal immigrants  based on a local officers say-so.  This provision gives the federal agency absolutely no discretion in how to deal with reported immigration violators, it states that "If a State, or a political subdivision of the State...submits to the Secretary of Homeland Security a request that the alien be taken into Federal custody, notwithstanding any other provision of law, regulation, or policy the Secretary (1) shall take the alien into custody not later than 24 hours.."  

This bill is giving local police the power to force a federal agency to make an arrest, based solely on a police officer's assessment of some person's compliance with immigration regulations!  What if this was extended to other legal areas?  Are we to expect that at any traffic stop the police can check whether a driver has satisfied his tax liabilities, and if not demand that the IRS com and take him to prison?  If local police are called to investigate a break-in at a shipyard, should they also take the opportunity to inspect all the bills of lading and force the feds to immediately arrest the owners and management based on any discrepancies in the paperwork?

Shockingly, the bill as it is written requires ICE to arrest and detain ALL immigrants reported by police, regardless of whether immigration laws would require arrest or detention of the person in question, and irrespective of any enforcement priorities of the agency.  Thus, an immigrant who is not charged with a crime and who is not required to be detained under immigration laws, could still spend several days in jail.

This really is just another costly bill to fill prison beds, much like the house forced into the appropriations bill earlier this month.  This is obvious when reading Sec. 108(b) which clarifies that "In carrying out [this section], the Attorney General or Secretary of Homeland Security shall ensure that an alien arrested under this title shall be held in custody, pending the alien's examination under this section, in a Federal, contract, State, or local prison, jail, detention center, or other comparable facility..."

Because the bill also requires that the federal government now reimburse localities for the costs "incurred by the State, or political subdivision, as a result of the incarceration and transportation of an alien," it creates an incentive for local law enforcement to lock up anyone who might possibly be out of status.  University students who did not maintain a full course load;  crime victims who have not yet had a chance to apply for a U-visa, spouses of U.S. Citizens who did not file a "petition to remove conditions on residence" in a timely manner--all of these could be jailed by local police with U.S. taxpayers footing the bill.  Jails are a major employer and revenue stream in some counties, particularly those which have already contracted with the Department of Homeland Security to double as detention centers.  With this bill, counties that need cash and feel that ICE is not filling up their jail beds fast enough can fill the beds themselves and bill the rest of the country for the cost.


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