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Monday, September 01, 2008

The feds' commandeering of local governments to enforce immigration law

Hadar Aviram's post on San Francisco's battle with the feds over immigration policy highlights one of the gaping holes carved in state autonomy by the 1996 amendments to federal immigration and welfare laws. Those amendments bar state and local governments from restricting their agencies or employees from sending or receiving information about an individual's immigration status, thereby allowing state and local officials to defy the laws that create their offices and instead employ their state-conferred powers for federal purposes. (§434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1644, and §642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C.A § 1373).

Such federal laws are, in my view, a sneaky end-run around constitutional doctrines protecting state and local autonomy. It is well-established that the Congress itself cannot order a state to implement federal immigration law. How, then, can Congress delegate to state or local employees the power to use the state's legal authority and tax dollars in defiance of state law? That those employees themselves are acting voluntarily is irrelevant: They are acting on city time, using the city's powers and money, in defiance of state law. Such employees, therefore, are themselves commandeering state powers for federal ends. If Congress could not itself commandeer state legal authority, how can Congress delegate such commandeering power that it lacks to a third party like a state employee? (Shameless self-promotion: I defended this view of state autonomy in "Dissecting the State," 97 Mich. L. Rev. 1201 (1999)).

To my astonishment, however, Judge Ralph Winter wrote an opinion for a Second Circuit panel upholding the '96 amendments on the ground that the feds were not "commanding" anyone to do anything: federal law simply stopped non-federal officials from interfering with other people's decision voluntarily to cooperate with the feds. To construe Printz v. United States as barring such federal authorization for voluntary cooperation would, in Judge Winter's view, "turn the Tenth Amendment's shield ... into a sword allowing states and localities to engage in passive resistance that frustrates federal programs." City of New York v. United States, 179 F.3d 29, 35 (2nd Cir 1999).

Judge Winter's reasoning, I think, is transparently preposterous. It would be nice if San Francisco could be induced to re-litigate the Printz issue decided by City of New York. To my knowledge, the Ninth Circuit has not yet ruled on the question, and it would be a shame for the issue to be decided by reasoning as casual as Judge Winter's. It is possible that the Ninth Circuit might uphold the '96 amendments under Reno v. Condon, as a permissible command to share data rather than exercise "sovereign" regulatory powers. I think that such a result would be a mistake, but it would be a far narrower exception to state sovereignty than the gap in state autonomy created by Judge Winter's reasoning.

Posted by Rick Hills on September 1, 2008 at 01:48 PM in Constitutional thoughts | Permalink


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I never quite knew what O'Connor had in mind by her notion of "ministerial" reporting. (I thought it meant states could be required to send up data they had already compiled on some issue.) In the immigration enforcement context, it's hard to see how telling the federal agency that an identified individual is unlawfully present is simply making a ministerial report. The federal government lacks the personnel to find people who are here illegally. Without the report from the state, the individual would likely remain undetected and therefore would not be deported. The state, then, is being asked to enforce the law for the federal government. Isn't that the very thing that Printz prohibits?

Posted by: Jason Mazzone | Sep 2, 2008 12:52:53 PM

If the feds compel state officials to provide information on the same terms as private organizations, then I certainly have no constitutional objection. That federal power is, I assume, the purpose of the principle allowing the feds to impose "generally applicable laws" on state officials.

But demanding information gathered by the police is a far cry from demanding information collected by private firms. The police gather their information by using powers that range from the vaguely threatening (e.g., " voluntary" questioning of "persons of interest") to the downright coercive (e.g., arrest and interrogation). Should the feds be able to harness this coercive power for federal ends? I think not. We trust the non-federal police to exercise such extensive coercive powers only because they are embedded in a network of democratically responsive oversight mechanisms -- state judges, civilian review boards, city councils, mayors, state legislatures, etc. -- that limit the scope of coercion. In particular, these organizations specify the ends for which that coercion can be deployed. To "federalize" this information-gathering function is to liberate the police from this oversight, destroying the very institutional framework that justifies their powers.

Private firms are already circumscribed by the market, by the terms of contract, and by the principle that the feds are limited in their power to delegate coercive powers to a private firm (see, e.g., Carter Coal). I can tolerate federal liberation of private actors -- say, a telecom company -- from the constraints of state law, because private actors do not wield the powers of a cop with a badge and a gun. I see no reason for the feds to liberate the far more dangerous beast of the non-federal police from their state and local cage.

Let the Congress create a federal immigration police in numbers sufficient to enforce our immigration laws -- if they dare. If they do not because the cost would be too great, then by what principle can they argue that deputizing the non-federal police is somehow "necessary and proper"?

Posted by: Rick Hills | Sep 1, 2008 9:11:46 PM

Thanks, Rick. You argue that "even 'ministerial' reporting requirements can have enormous effects on a police department's ability to gain the cooperation of witnesses and informants, none of whom want to be deported because they came forward to assist their beat cop."

That sounds plausible to me -- a good reason not to vote to impose such a requirement. But a *constitutional* objection? Why?

What's the constitutional principle here? That the federal government can compel virtually anyone *but* the states to provide information in their possession about violations of federal law? (Think of subpoenas, compelled testimony, the requirements that telecoms assist the feds, etc.) You don't really think the Court, even without SOC, would or should invalidate the law she referred to as her example (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice), do you?

Is the principle, instead, that any federal action that has "enormous effects" on a state's preferred means of enforcing its own law is invalid? Too broad, no? It would mean virtually no preemption; reversal of Garcia; no federal prosecutions that would interfere with state prosecutions; etc. The implications would be very dramatic.

Of course, I am an admitted anti-Printz nut on these matters . . . . ;-)

Posted by: Marty Lederman | Sep 1, 2008 6:30:48 PM

Actually, I do not read Justice O'Connor's opinion as stating that Congress could require information sharing. O'Connor writes only that "the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid." I'm taking the Justice at her word that she also is appropriately refraining from deciding this issue, which leaves it an open question.

Open or not, it is an easy question: Limiting Printz with some sort of "ministerial" exception for "reporting" information would be a mistake. The difficulty is that even "ministerial" reporting requirements can have enormous effects on a police department's ability to gain the cooperation of witnesses and informants, none of whom want to be deported because they came forward to assist their beat cop. One might try to confine the scope of the exception by hard-pedaling the notion that the obligation to report will apply only to information already in the department's possession. But this qualification preserves the police department's capacity to maintain independence from the ICE only if the police are free to adopt a policy barring any officer from collecting information about immigrant status, thus avoiding the official "possession" of the info that would trigger that "ministerial" obligation -- making the exception for "ministerial" reporting a pretty trivial aid to the feds.

In short, the narrowness of this exception indicates how utterly unnecessary it is for federal law enforcement. If cities are entitled not to collect immigration information at all, then it seems pretty silly to insist that they have to disclose stuff that they have already collected. It cannot be that somehow federal immigration enforcement efforts will be impeded without ministerial reporting if the city can avoid the duty by just telling their cops to play dumb.

In short, McCulloch's admonition makes sense here as a simple bright-line rule: "[the federal government's] means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends." Exceptions for ill-defined "ministerial" obligations seem to cloud the doctrine without appreciably protecting to federal supremacy.

Of course, I am an admitted federalism nut on these matters.

Posted by: Rick Hills | Sep 1, 2008 6:06:01 PM

Rick: Under not only Reno v. Condon but also SOC's fifth-vote concurrence in Printz, presumably Congress could *require* the state to forward information about illegal conduct, already in its possession, to the feds. If that's so (and I realize you might think that the feds shouldn't be permitted to to require information-sharing, either, contra O'Connor and Reno -- but assume they can), isn't this lesser-included preemption of state confidentiality rules ok, too?

Posted by: Marty Lederman | Sep 1, 2008 3:29:34 PM

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