I was disappointed in President Obama’s challenge to Arizona’s hotly debated immigration law and Judge Susan Bolton’s preliminary ruling. To argue that it is unconstitutional for local law enforcement to be a legitimate partner in immigration enforcement is shortsighted. It is evidence of a lack of commitment to securing our borders and a lack of appreciation for the proper role of the states in supporting federal law enforcement priorities.
The administration challenged the Arizona law because immigration enforcement is the province of the federal government and federal law trumps state law. While I agree with this constitutional principle, the federal government has not exclusively pre-empted the state’s role in immigration enforcement. In fact, the federal government has encouraged a greater partnership with the state, and it should continue to do so.
As the former undersecretary for border and transportation security at the Department of Homeland Security, I made the case that U.S. Immigration and Customs Enforcement (ICE) does not have the manpower or resources to do the job alone. There are about 12 million illegal immigrants in the country and only about 6,000 ICE agents.
Obviously, our efforts will be more effective if we can partner federal law enforcement’s limited resources with the vaster resources of state and local organizations around the country. This is why we promoted something known as 287(g), passed by Congress in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act.
In short, 287(g) encourages partnerships between federal and state/local law enforcement to tackle the problem of illegal immigration. The program was and remains quite successful, though the current administration has greatly curtailed the approval of new agreements with states that would allow for such partnerships. Nonetheless, there are 63 jurisdictions in 20 states (including Arizona) that already have partnership agreements with ICE.
The joint agreements require that ICE provide training, including training to protect the civil rights of individuals and prevent profiling. They also require that ICE agents supervise local officers when they are engaged in immigration enforcement activity.
To suggest that immigration is the exclusive domain of the federal government, disallowing partnerships with local law enforcement, defies the will of Congress, not to mention reality. Numerous local jurisdictions have laws on the books dealing with immigration in a variety of ways.
Historically, there is a presumption that the legitimate police powers of the states are not to be pre-empted by federal law unless Congress has made that purpose clear. When Congress has been an active partner in promoting state and local enforcement partnerships, as in the case of immigration, there should be no real pre-emption debate.
Clearly, the problem of illegal immigration is not being addressed to the extent it needs to be addressed in Arizona. When Gov. Jan Brewer signed S.B. 1070 into law, authorizing the state’s local law enforcement to enforce immigration law, she made clear that the state of Arizona was doing so because the federal government had failed to do so.
There are plenty of examples of federal-state partnerships that deal with a variety of law enforcement challenges. These could be used as models for similar partnerships regarding immigration. For instance, Joint Drug Enforcement Task Forces comprising federal, state and local law enforcement to combat illicit drugs - including drugs being smuggled across U.S. borders - are common. No single entity has exclusive jurisdiction; the enforcement efforts are shared.
Another model is the Joint Terrorism Task Forces established to combat terrorism. In this case, there is a clear lead agency - the FBI. However, as the Department of Justice asserts on its website, the task forces comprise “the resources of federal, state, and local law enforcement.”
Without allowing for such partnerships between states and the federal government on the issue of immigration, there can be no serious argument that we are attempting to secure our borders.
To be sure, the financial burden of enforcement should not fall only on state and local governments. Rather, the federal government should provide adequate funding to support local efforts, and it has. A cost-sharing relationship with state governments already is in place - known as Operation Stone Garden - to reimburse them for the border-enforcement efforts in which they engage.
Certainly, I appreciate Judge Bolton’s concern for preserving individual liberty, something our courts must always seek to uphold. Proper training and federal supervision in state-federal partnerships are essential to both assuring constitutional rights and enforcing our immigration laws. Our Founding Fathers’ concept of federalism does not prohibit such cooperation, and we have learned from experience that joint efforts work best.
Asa Hutchinson is the former undersecretary for border and transportation security at the Department of Homeland Security and is a partner at the Hutchinson Group.