A few Democratic governors have been publicly refusing to participate in a federal program called “Secure Communities,” through which police share fingerprints with federal immigration authorities. On Friday, the Obama administration announced that Secure Communities would continue expanding in these governors’ states despite their objections. A letter from the Department of Homeland Security (DHS) said it was terminating all agreements with individual states, because an agreement “is not required to activate or operate Secure Communities for any jurisdiction.”
The administration is effectively requiring local police to participate in immigration enforcement.DHS points out that police already share fingerprints with the FBI, and its letter states that “no agreement with the state is legally necessary” for federal agencies to share such information. The now-terminated agreementbetween DHS and Illinois State Police allowed both parties to temporarily cease participation “when resource constraints or competing priorities necessitate.” Secure Communities was authorized under Congressional directives for agencies to share information. Immigration and Customs Enforcement says that Secure Communities targets those who commit serious crimes.
New York Governor Andrew Cuomo refused to participate and questioned the program’s effectiveness in deporting dangerous criminals. Cuomo also warned of “consequences for witnesses, victims of crime and law enforcement.” Critics of Secure Communities cite concerns about racial profiling and rifts between immigrant communities and police. Even if the program imposes no additional obligations on local authorities, DHS is still asking police to assume the risks and problems that come with enforcing immigration laws. Some local authorities may not want to chip in because their constituencies have more urgent priorities for law enforcement.
Secure Communities is not the first federal program to enlist police in enforcing federal regulations. The Brady Act required state officers to perform background checks when firearms dealers sold handguns, but the Supreme Court threw out this provision of the Act, ruling that Congress cannot require state officers to enforce federal gun laws. Justice Scalia’s opinion said, “The Framers’ experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict.” The Court criticized the Act for infringing on state sovereignty and warned that the federal government’s power would be “augmented immeasurably” if it could commandeer state and local police. The Court stated, “By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions with higher federal taxes.” But even if Congress paid the bills, the state would be accountable for the program’s “burdensomeness and . . . defects.”
Likewise, the federal government cannot require cash-strapped local authorities to enforce federal immigration law. The Constitution grants Congress the authority to regulate immigration, and the Supreme Court has described this authority as essential to national sovereignty. Because the President must faithfully execute federal law, Obama should be accountable for any lack of immigration enforcement, just as Congress is responsible for any lack of reform.