12/19/2011 04:36 pm ET Updated Feb 18, 2012

Immigration Law Free-for-All

I recently interviewed Harry DeMell, an immigration lawyer and member of the American Immigration Lawyers Association, about states taking immigration policy into their own hands.

Schupak: Harry, you've said that we need greater government legal action in the area of immigration and deportation, yet you've been a strong critic of the states that have taken immigration enforcement into their own hands.

DeMell: Immigration is federal responsibility. This idea that every level of government has to get involved with a problem is a bad idea. The Supreme Court has recently accepted for decision the case of Arizona V the United States. The issue to be decided is the issue of the immigration laws as applied to the idea of federalism.

Schupak: This issue seems timely.

DeMell: Yes. States and localities have been enacting their own immigration legislation and this has created a conflict of laws.

Schupak: So why do states feel that they need to have their own immigration laws?

DeMell: Because the federal government has dropped the ball in this area. There is a drug war going on in Mexico and the federal government seems to be unconcerned about it. Those who live near the border see the problem and demand action. For political reasons the rest of the country looks the other way.

Let's face the facts: In the area of visa and immigration enforcement state and local governments are simply attempting to fill the void.

Schupak: Isn't that good?

DeMell: We need to control our borders. But if every state or municipality enacts their own immigration laws, we would have hundreds of contradictory immigration laws, which would result in sheer chaos. I believe it's clear that the Supreme Court, when they decide Arizona v. U.S., will either strike down these laws or make rules that significantly curtail them.

If a state sets up it's own army, we would agree that this is a federally preempted area, even though the constitution allows for a militias. No one could imagine a state declaring war. That's a federal area. If a state decided to open an embassy in another country, there would probably be no disagreement at all. The immigration and visa area should be no different.

Schupak: Isn't it better if some things are coordinated on a federal and state level?

DeMell: It seems that increasingly the states and localities make up their own rules and opt out of federal programs when they feel like it. There are programs such as the Secure Communities program that coordinates efforts of local police to turn over immigration violators.

Schupak: What's the Secure Communities Program?

DeMell: It's a program whereby police turn over undocumented aliens to the Immigration and Customs Service. The implementation of this policy might be too much to get into now, except to say it's a common practice for law enforcement to hold people when they find that their might be wanted by other law enforcement agencies.

Schupak: What should we do?

DeMell: We need to control our borders, and the federal government is the best and only place to do it properly. The American people need to learn more about the immigration problems we face, and need to go beyond the sound bites they hear on cable TV. When people ask the right questions and demand intelligent action from Washington, then maybe we'll begin to get a handle on America's immigration problem.

Schupak: What do you think the Arizona case will accomplish?

DeMell: It will clarify some of the boundaries between federal and state responsibilities. It will not solve the immigration issue. That will be up to congress and the willingness of the administration to enforce the laws and police the boarders.

Schupak: Do you have an opinion about the Arizona immigration law?

DeMell: Oh yes. Arizona's immigration law is a bad idea whether you are a restrictionist or a supporter of comprehensive immigration reform. The reasons are different for each but the idea of a state taking extreme measures points to the failure of congress and the administrations, over several decades, to take meaningful actions to correct what is becoming a system that is failing the immigrant community, business's need for labor, the American economy and the efficient execution of government.

Schupak: That's a lot.

DeMell: There's more. From the point of view of the people who passed this bill, it will be a disaster. If they get what they want they might criminalize the immigration system. Didn't any of them think that once aliens are stopped and arrested by state police on criminal grounds, that they have all the constitutional rights guaranteed to criminals by the constitution? Those rights include everything from Miranda warnings, to right to counsel to the right to be tried by an article three court or state court with criminal jurisdiction. Don't they understand that that would be a disaster for the criminal justice system already over burdened?

Immigration has always been considered a civil issue. Very much like a business dispute or divorce where the loser is not necessarily punished but the parties put right. In immigration it's about remaining in the U.S. or bring returned home. Once states like Arizona criminalize it, it becomes punishment and a very different set of rules apply.

Schupak: So are you pro or anti-immigrant?

DeMell: I'm pro-American, and as part of that, pro-legal and controlled immigration.. I understand that abuse of the system will have long-term detrimental effects. Too much criminalization as well as a weak border protection program will lead to a bad situation for the American people.