"It's pretty simple: federal law pre-empts state law." That was Steve Whitmore, spokesman for Los Angeles County Sheriff Lee Baca, describing why the county plans to continue to participate in the federal government's controversial immigration program known as Secure Communities (S-Comm), even if Governor Jerry Brown signs the Transparency and Responsibility Using State Tools (TRUST) Act (AB 1081), which would limit state and local involvement with federal immigration enforcement.
Although Whitmore is right that federal law does pre-empt state law, he is wrong to believe that the law mandates S-Comm. But even if the program were mandatory, it would be unconstitutional. Still, his concerns and those expressed by other California sheriffs are understandable. The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) are misleading state and local police into believing that the program is legally required.
S-Comm sends to Immigration and Customs Enforcement (ICE) fingerprints and names entered by municipal authorities into the federal criminal database. If ICE officials suspect an individual is undocumented, it can issue an administrative hold requesting the municipality detain the person for up to 48 hours, or longer during weekends and holidays to give agents time to take custody.
When the Bush administration first introduced S-Comm in 2008, it was clear that participation was voluntary. Localities had to sign up to participate, and ICE recruited just eleven jurisdictions. But the Obama administration has attempted to convince police departments that involvement is mandatory. When asked during a press conference in 2010 whether or not communities could "opt out," Homeland Security Secretary Janet Napolitano said, "No... [we can] work with them on the implementation in terms of timing, but we do not a view this as an opt-in, opt-out program."
ICE perpetuates the same deceit on its detainer requests. The I-247 Detainer Form claims that "federal regulation 8 C.F.R. § 287.7... provides that a law enforcement agency 'shall maintain custody of an alien' once a detainer has been issued by DHS." But what the regulation actually states is that after issuing "a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours."
Thus, ICE's selected quotation is actually from a limitation on law enforcement's ability to hold individuals voluntarily, not a mandate that they do so. While no explicit statute created S-Comm,8 U.S.C. § 1357 (g) allows "any officer or employee of a State or political subdivision of a State" to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." But as the section's co-author, Rep. John Doolittle (R-CA), stated at the time, "It does not require anything. Only if the local law enforcement wishes to assume this responsibility may they under the provisions of this bill."
Federal and state courts have agreed that immigration detainers are requests, not mandates. In U.S. v. Female Juvenile 377 F.3d 27 (2004), for example, the U.S. First Circuit dismissed the argument that a detainee could not be released based on an immigration detainer, noting that it is not "an order of custody," but instead "a request." In People v. Jacinto 49 Cal. 4th 263 (2010), California's Supreme Court found compliance with detainers to be "a matter of comity."
If the detainers were mandatory, they likely would be found unconstitutional. The U.S. Supreme Court has ruled in Printz v. U.S. 521 U.S. 898 (1997) that the "Federal Government may not compel the States to enact or administer a federal regulatory program," nor " impress into its service--and at no cost to itself--the police officers of the 50 States." The challenged law mandated that "each local jurisdiction" run background checks on gun purchasers. The Justices found it violated states' "residuary and inviolable sovereignty that is reflected throughout the Constitution's text."
The TRUST Act simply affirms this principle, stating that ICE "may not mandate the expenditure of state and local resources or the use of state and local agencies to implement federal programs." The bill requires "continued detention" accord with state and local policy and applies it only to individuals who have "have been convicted of a serious or violent felony, according to a criminal background check or documentation provided to the law enforcement official by [ICE]" (Sec. 2(a)).
Despite the federal government's claim that the program targets only criminals, only 14 percent of ICE deportees as of late 2011 were even charged with a criminal offense. Instead, S-Comm has caught in its net children, domestic violence victims, an American citizen, and people with traffic citations or municipal ordinance violations. It interferes with local policing strategies and drops people into a system without any due process, including a presumption of innocence, the right to an attorney and a speedy trial. It encourages crimes to go unreported and shreds community trust in police--it does not make communities "secure." S-Comm should be ended in its current form. Until then, the TRUST Act is a good step toward limiting its effects.