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Some Arizona, local roles in immigration enforcement are reasonable; others aren’t

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An internal federal Department of Justice memorandum discusses prosecuting state and local officials who do not cooperate with the Trump administration’s efforts to detain and deport illegal immigrants.

Democratic officials around the country vow resistance, with varying degrees of emphasis. In Arizona, Attorney General Kris Mayes and Phoenix Mayor Kate Gallego, among others, have expressed at least some degree of defiance. Gov. Katie Hobbs has sort of hemmed and hawed.

At the Arizona Legislature, at least two bills have been introduced intended to compel compliance.

If American politics were healthier, this wouldn’t be such a controversy. There are reasonable things to expect state and local law enforcement to do to assist with the enforcement of immigration laws, most of which are already occurring in Arizona. And there are things that are unreasonable to expect, and that would also be unwise and highly vulnerable to abuse. Arizona’s past history also illustrates that.

Navigating between the reasonable and unreasonable is guided by two fundamental principles. The first is that laws should be enforced, even by officials who think they should be changed.

That’s the essential difference between being governed by the rule of law and being governed by the whim of autocratic and arbitrary power. It’s a fundamental building block of the republican form of government guaranteed by the U.S. Constitution.

The second principle is federalism, or the dual sovereignty of the national and state governments. Under this principle, the federal government cannot commandeer the resources of the states to implement federal programs or objectives.

So, what is reasonable to expect state and local governments to do, voluntarily rather than through compulsion, to assist with the enforcement of immigration laws? The focal point of cooperation is, and should be, prisons and jails.

Local identification, detention essential for public safety

It’s not much of a burden for local law enforcement to facilitate the identification of illegal immigrants among those incarcerated and honor a retainer to turn them over to federal immigration officials if requested. Doing so for those convicted of serious crimes is essential for the protection of public safety. But it should be remembered that all those in the country illegally are subject to deportation. A blind eye shouldn’t be turned to their illegal presence just because it became known through the commission of a lesser offense.

Deportation in these circumstances involves a degree of due process, taking time and resources. Deportation prioritization belongs with the federal government, not state and local officials.

There are a number of ways in which state and local officials can facilitate the identification and detention of illegal immigrants who become incarcerated. There are two ways known as 287g programs, after the section of the federal legislation authorizing them.

In the Jail Enforcement Model, state or local corrections staff can undergo training and be authorized to interview inmates and access federal databases to identify illegal immigrants in the incarcerated population and report that to federal immigration officials.

In the Warrant Service Officer program, corrections staff can receive considerably less training, but are only authorized basically to deliver paperwork, an administrative warrant, regarding incarcerated inmates whom federal immigration officials have determined on their own should be detained to initiate deportation procedures.

But these 287g programs aren’t the only way cooperation can take place. Maricopa County doesn’t participate in either program. However, the county allows federal immigration officials to be stationed in its jail to vet inmates for immigration violations and honors retainer requests that result. Other forms of cooperation short of a 287g delegation of authority have been implemented from time to time.

The federal government used to have other 287g programs that allowed state or local law enforcement officials to make immigration arrests outside of prisons or jails. This is where we move into the territory of the unreasonable, unwise, and subject to abuse.

The Trump administration may try to revive this option, which is supported by many in the immigration restrictionist movement as a potential substantial force multiplier for immigration enforcement. The DOJ memorandum suggests that the administration may even attempt to compel state and local cops to become immigration enforcers.

Compulsion would run afoul of the dual sovereignty principle. And even allowing it as an option is unwise, as Arizona’s experience fully demonstrates.

Former sheriff's racial profiling sparked lawsuit, changes

The Maricopa County Sheriff’s Office under Joe Arpaio gained immigration arrest authority. He used it for blatant racial profiling. He would set up a dragnet in Latino neighborhoods, have his officers pull over cars for picayunish traffic violations, and then send out press releases about how many illegal immigrants were nabbed. There was no attempt to even try to hide the fact that the stops were just a pretense to search for illegal immigrants.

The result was a successful civil rights lawsuit that put the operations of the office under the control of a federal judge, where it remains. The 287g option for local law enforcement to obtain immigration arrest authority was eliminated shortly thereafter, undoubtedly due in considerable part to Arpaio’s demonstration of how the authority was vulnerable to abuse.

Limiting the state and local role to facilitating the identification of illegal immigrant inmates is far less susceptible to racial profiling than giving local cops immigration arrest authority. Even if the country wants more robust immigration enforcement, that’s a line that shouldn’t be crossed.

Arizona House Bill 2099

One of the bills introduced in the Legislature, House Bill 2099 with GOP Rep. Teresa Martinez as the prime sponsor, would require the governor and the attorney general to “enforce, administer and cooperate with federal actions, orders and programs that relate to the enforcement of federal immigration laws.”

This isn’t a serious policy proposal, since it is entirely unknown what actions, orders and programs might be forthcoming, whether it would be wise or appropriate for the state to enforce, administer or cooperate in them, or what doing so would cost. It’s obviously just a piece of veto-bait, intended to give Republicans an opportunity to depict Hobbs and Mayes as soft on immigration for not agreeing to buy a pig in a poke.

If Republicans want a governor and attorney general closer to their thinking about immigration, they might try fielding nominees for those positions who can actually win a general election. Just a thought.

Arizona Senate Bill 1164

The other bill, Senate Bill 1164, with Senate President Warren Petersen as the prime sponsor, is a serious policy proposal and somewhat narrowly tailored. Nevertheless, it also is fatally flawed.

The bill’s mandates would apply to the state and counties, but not municipalities. Counties are, legally, administrative arms of the state. There are no charter counties with independent authority, as there are charter cities. So, the scope of the bill is within the proper jurisdiction of the state Legislature.

It would require the state Department of Corrections and county sheriffs to participate in the most extensive 287g program available, which currently is the Jail Enforcement Model.

The state prisons already participate in that program, as do the counties of La Paz, Pinal and Yavapai. So, the state at least is already doing what the bill would require.

Maricopa County is not, but the same result is being obtained, identifying and detaining inmates federal immigration officials want to deport. This is being done at the expense of the federal government, rather than Maricopa County taxpayers. What’s the point of forcing Maricopa County to seek 287g status, which given the court oversight might be problematic, when the same result is being obtained on the federal government’s dime?

The real danger of Petersen’s bill, although he probably wouldn’t see it as such, is if the Trump administration revives the option of state and local cops obtaining arrest authority for illegal presence. Petersen’s bill, as written, would require a percentage of the officers of the various county sheriff's offices, all of them, to obtain such arrest authority. But, curiously, not the state Department of Public Safety.

The last thing Arizona needs is Arpaio redux.

Immigration law reform and amnesty

I believe that our immigration laws need to be changed and I favor an amnesty for most of those currently in the country illegally, coupled with mandatory use of the E-Verify system for employment and reform of the asylum system to weed out unsuccessful claims far more quickly. Any stepped-up enforcement will catch up those I, and most Americans according to the polls, wouldn’t want to see deported.

However, turning a blind eye to violations of our immigration laws undermines the rule of law. When illegal presence comes to the attention of officials, it shouldn’t be ignored.

In particular, those whose illegal presence comes to light as a result of being incarcerated shouldn’t be ignored. And, respect for the rule of law argues for state and local officials to facilitate identifying and detaining those whom they incarcerate and federal immigration officials want to deport.

Editor's note: Retired Arizona journalist Robert Robb opines about politics and public policy on Substack. Reach him at robtrobb@gmail.com. Please send your comments to AzOpinions@iniusa.org. We are committed to publishing a wide variety of reader opinions, as long as they meet our Civility Guidelines.

Arizona, immigration, immigrants, deportation, Department of Justice, politics, Kris Mayes, Kate Gallego, Katie Hobbs, U.S. Constitution, federalism, rule of law, federal government, Maricopa County, amnesty

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