March 18, 2015

Republicans Should Not Coerce States to Enforce Immigration Laws



House Judiciary Committee Republicans are debating today perhaps their most controversial immigration bill, H.R. 1148. The bill would allow states and localities to enforce federal immigration laws. But the bill goes further than simply giving them permission; it requires them to do it and creates punitive monetary penalties for refusal to do so.

These provisions set a dangerous precedent. They violate the fundamental principles of federalism on which this nation was founded, a principle which the Republican Party platform repeatedly praises, including in the context of immigration.  The GOP platform states:

[W]e condemn the current administration’s continued assaults on State governments in matters ranging from voter ID laws to immigration … We pledge to restore the proper balance between the federal government and the governments closest to, and most reflective of, the American people. Scores of entrenched federal programs violate the constitutional mandates of federalism by taking money away from the states, laundering it through various federal agencies, only to return to the States shrunken grants with mandates attached.

There could not be a more accurate description of what H.R. 1148 would do. It states that any state or local law enforcement officer may enforce federal immigration laws with no requirement for a vote by the relevant city or state legislature. Section 114 then prohibits state or local policies that “restrict … complying with Federal law or coordinating with Federal law enforcement,” meaning that the states’s residents have no veto authority over any officer that wants to make immigration arrests.

All of this is unconstitutional. The mandate to comply with federal dictates clearly violates the Printz v. United States (1997) decision by the Supreme Court which found that the federal government could not commandeer states to enforce federal gun laws.

But the bill goes even further. Section 115(b) would also coerce states into complying with this mandate by depriving them of all Department of Homeland Security grants. This would rip away even Federal Emergency Management Agency grants, which are used by states faced with sudden natural disasters. As Trevor Burrus of the Cato Institute has written, this provision is also unconstitutional because, under the NFIB v. Sebelius (2012) Supreme Court decision, the federal government may not use grants to coerce compliance with federal initiatives.

Republicans have long stood for the principles of federalism. They should not abandon those principles out of a single-minded focus to expand immigration enforcement. Congress can rein in executive overreach without overreaching itself.