Homeland Security Enhancement Act Provisions Spark Sharp Disagreement

IMMIGRATION LAW & POLICY

Arrest and Detention

Homeland Security Enhancement Act provisions spark sharp disagreement
Immigrants' Rights Update, Vol. 18, No. 3, May 20, 2004

Witnesses who testified recently before the Senate Judiciary Committee’s Subcommittee on Immigration, Border Security and Citizenship disagreed sharply on whether extending more authority to state and local law enforcement officers to enforce federal immigration law would enhance or detract from the U.S.’s security. Much of the witnesses’ testimony, as well as the subcommittee members’ questions and statements, focused on a bill currently pending in the Senate, the Homeland Security Enhancement Act (HSEA, S. 1906), whose counterpart in the House of Representatives is the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act (HR 2671).

The HSEA would criminalize all immigration law violations committed by non–U.S. citizens. It would force states to enforce immigration law by withholding State Criminal Alien Assistance Program funds from them if they do not repeal policies that limit police enforcement of immigration laws (the SCAAP reimburses states for the costs of incarcerating noncitizens). And it would authorize entering immigration information into the National Crime Information Center (NCIC) criminal database. (For more on the HSEA, see “Senate State/Local Immigration Enforcement Bill Goes Further Than House ‘CLEAR Act’ Bill,” Immigrants’ Rights Update, Dec. 18, 2003, p. 1.)

Witnesses called by the subcommittee’s Republican majority were Kris W. Kobach, former counsel to the U.S. attorney general, professor of law at the University of Missouri-Kansas City School of Law, and current candidate for Congress from Kansas; E.J. Picolo, regional director, Florida Dept. of Law Enforcement (FDLE); and Michelle Malkin, a syndicated columnist, Fox News commentator, and author of Invasion: How America Still Welcomes Terrorists, Criminals, and Other Foreign Menaces to Our Shores (Regnery Publishing, 2002).

The Democratic minority was permitted to call one witness: David A. Harris, Balk Professor of Law and Values, University of Toledo College of Law.

Harris argued that having state and local law enforcement authorities enforce immigration law would destroy relationships of trust that police have built with immigrant communities through community policing. This is a relationship that promotes public safety because it encourages immigrants to report crimes, both as victims and as witnesses. Malkin, in contrast, argued that it is not in fact a bad thing for lawbreakers (by which she meant persons who have violated immigration law) to experience the consequences of their lawbreaking that would occur if their contact with police resulted in their illegal immigration status being discovered. For his part, Kobach expressed doubt that immigrants report crimes to police.

Both Kobach and Malkin invoked the Sept. 11, 2001, terrorist attacks and specific vicious crimes committed by undocumented immigrants as justification for allowing state and local police to enforce immigration law. Neither explained how provisions such as those contained in the HSEA could have prevented the 9/11 attacks, nor how they would counter the failure of federal immigration agents to pick up and process for deportation persons arrested for or convicted of criminal charges.

Both suggested that the HSEA would allow police to inquire about a person’s immigration status in the course of arresting the person for a criminal violation. But neither the CLEAR Act nor the HSEA contains language specifically restricting local law enforcement officers from inquiring about a person’s immigration status unless they have arrested the person. Nor did Kobach or Malkin address one of the most troubling issues that the HSEA raises: the racial and ethnic profiling that inevitably informs law enforcement officers’ decisions about whom to question regarding immigration status.

The HSEA would provide that local and state law enforcement officers would not be disqualified from enforcing immigration law simply because they lacked training in it. “The absurdity of this is plain on its face,” Harris testified. “The shortsightedness it shows will doom local police agencies to suffer adverse consequences for years to come.” Neither Malkin nor Kobach explained how officers would understand, interpret, and enforce complex immigration law without first being trained in it.

The HSEA’s explicit authorization of immigration law enforcement without the enforcers’ first obtaining training in the law conflicts with section 287(g) of the Immigration and Nationality Act, which allows individual states to enter into a memorandum of understanding (MOU) with the federal government allowing trained state or local officers to enforce immigration law. Florida is one of two states that have entered into such an MOU with the Dept. of Homeland Security.

Sen. Edward Kennedy, the only Democratic member of the subcommittee to actually attend the hearing, pointed to the Florida MOU as a model for state-federal cooperation on immigration enforcement. The Florida MOU strictly limits Florida officers’ immigration-related law enforcement activity to domestic security and antiterrorism cases carried out by domestic security task forces under the supervision of federal immigration agents. E.J. Picolo, the FDLE regional director, testified that Gov. Jeb Bush had expressed that he felt “trepidation” regarding state law enforcement officers becoming immigration enforcers, and that it is the official state position to give them only limited immigration-related authority. In contrast, the HSEA would explicitly give all state and local law enforcement officers expansive immigration enforcement authority.

Kobach argued Attorney General John Ashcroft’s contention that state and local police have “inherent authority” to enforce civil immigration provisions. That view is in conflict with a 1996 Dept. of Justice Office of Legal Counsel ruling that concluded the opposite. According to Kobach, that portion of the 1996 opinion has been withdrawn. But the DOJ’s own legal opinion on the issue has never been made public, and an appeal of a Freedom of Information Act request to compel its production is still pending. Sen. Kennedy pointed out that three police chiefs from the area of Kansas that Kobach seeks to represent in Congress, including the Kansas City police chief, have submitted letters stating that they oppose being saddled with the additional responsibility of enforcing immigration law.

Sen. Jeff Sessions of Alabama, a sponsor of the HSEA but not a member of the subcommittee, argued that under the HSEA, state and local police participation in immigration law enforcement activity would be totally voluntary. However, as Harris pointed out in his written statement, if the HSEA were to become law, state and local jurisdictions that have policies limiting the degree to which law enforcement officers can inquire into immigration status face the loss of SCAAP funds if those policies are not repealed.

The hearing was held on Apr. 22, 2004. The day before the hearing, the conservative Heritage Foundation issued a briefing paper criticizing provisions similar to the HSEA’s that are contained in the proposed CLEAR Act. According to the paper, extending immigration law enforcement authority to state and local officers would force police to shift their priorities from criminal investigations to investigations of immigration status and would undermine trust in immigration communities. Entering immigration information into the NCIC database would undermine the NCIC’s effectiveness. Moreover, under the CLEAR Act’s broad provisions immunizing state and local officers from being held liable for violations, persons whose rights the police violated would have no recourse for redress of their complaints. Finally, the Heritage Foundation’s briefing paper argues, statutory authority already exists for police to arrest noncitizens who commit crimes.

Statements from the witnesses who testified before the subcommittee and from committee members Orrin Hatch (R-UT) and Patrick Leahy (D-VT) are available at http://judiciary.senate.gov/hearing.cfm?id=1156.

The fact that the HSEA has only four cosponsors indicates that it has not generated substantial support in the Senate. But its eventual success cannot be ruled out, particularly as comprehensive immigration reform proposals gain momentum in the Congress and their supporters look for an enforcement component.