Thus between 1870 and 1900, the United States received approximately 12 million migrants (Library of Congress 2004). This immigration trend into the United States has continued unabated well into the twenty first century and presently the foreign born population constitutes a significant proportion of the total American population. But of particular concern is the case of illegal immigrants who have infiltrated virtually every corner of the United States. In a 2005 population survey, it was estimated that there were more than 11.1 million illegal immigrants living in the United States and the numbers are steadily increasing with each passing year (Passel, 2006).
An uncontrolled influx of immigrants into the US can adversely affect the economy and has invited a negative public opinion from U.S residents. For this reason, the federal government has had to come up with several immigration policies and laws with which to control the immigration process and to curb the influx of illegal immigrants. Although immigration policy is conventionally a realm of the federal government, recently, there have been efforts to include both the state and local governments in the process.
This development has been met with different reactions as some people support the idea while others openly question its validity as applied to the constitution. Is the involvement of state and local law enforcement agencies in the enforcement of immigration laws a violation of the U.S constitution?
Why the state and local law enforcers are being involved in immigration law enforcement
The federal government is probably not to blame for not being able to adequately handle the immigration situation. Apparently it operates a limited force of an estimated 2,000 federal agents. Yet statistics show that there are more than twelve million immigrants living illegally in the United States and every year, there is an influx averaging 800,000.
Some of them, around 450,000, are absconders who have already been issued with a deportation order but have not yet left the country. Some of them have even been found guilty of some deportable crimes but are yet to be deported. Cleary, the federal government has not been able to effectively implement the federal immigration laws across the entire country, simply because it lacks enough manpower. The number of illegal aliens in America far outweighs the force that is meant to control them at the ration of approximately 5,000 to 1. It is for this reason that decisions were made to include the state and local law enforcers in the implementation of immigration laws. This move added an additional 700,000 law enforcers to the immigration police force thereby increasing the capability of the federal government to effectively enforce the immigration laws (Booth, 2006).
Legislations supporting the involvement of state and local law enforcers in immigration
There are several legislations which have been proposed to facilitate the involvement of the state and local law enforcers in the implementation of immigration laws. In the late twentieth century, the federal government started making subtle efforts to involve state and local governments in immigration. The year 1996 marked a turning point in the involvement of state and local governments in enforcement of immigration laws. During this year, Congress introduced the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) which brought significant changes in state handling of aliens (The constitutionality of immigration federalism, 2005).
Through this act, Congress gave the states authority to discriminate against immigrants in public benefits programs by deciding who was eligible and who was not. Since the states are not allowed to classify aliens under the equal protection doctrine, the federal government took measures to devolve immigration decision making authority to the states so that their welfare discrimination would not be viewed as a violation of the constitution but rather, as immigration law making (Wishnie, 2002).
The immigration laws of 1996 encouraged the state and local governments to take part in the implementation of immigration laws and authorized them to cooperate with the U.S Immigration and Naturalization Service (INS). Ordinances which had previously prevented the INS and the local agencies from communicating were removed and the states were allowed to deny drivers licenses to illegal immigrants.
This led to an increase in the number of detained illegal immigrant.In 2001, the September 11 attacks further intensified local government involvement in the enforcement of immigration and in 2002, the U.S Department of Justice declared that in its point of view, the state and local governments possessed an inherent authority to enforce immigration laws (Wishnie, 2002).
In 2003, H.R 2671, the Clear Law Enforcement for Criminal Alien Removal Act (CLEAR Act) was introduced by the U.S House of representatives. It stated in part that the State and local law enforcers had the authority to enforce immigration laws and declared that any state with no statute to enable the implementation of federal immigration laws within a two year period after the act had been enacted be denied certain federal incarceration assistance.
It also proposed compensation of the State or local authority for the apprehension of illegal immigrants within their jurisdictions as well as the provision of personal liability immunity to personnel who enforced the immigration laws; whether they are from a federal, State or local agency. However, this bill never became law (GovTrack.us, 2003).
In November 2003, S.1906, the Homeland Security Enhancement Act (HSEA) was introduced into parliament by the U.S senate. Under the HSEA, all violations of immigration laws committed by immigrants would be criminalized. The act also proposed that the states which did not repeal the policies that hindered their police from enforcing the immigration laws be denied funds from Criminal Alien Assistance Program (SCAAP) so as to induce them to enforce these laws.
The SCAAP program reimburses the States any costs that they may have incurred in their incarceration of non US citizens. This Act was met with sharp disagreements with the opponents arguing that it would damage the good relationships that local law enforcers had forged with immigrants in their area even as its proponents felt that its enactment would boost national security (NILC, 2004).
In 2005, some legislation pieces similar to the 2003 Clear Act and the 2003 HSEA Act were reintroduced by Congress. Both of these bills asserted that the state and local law enforcement was allowed to aid the federal government in the implementation of immigration laws. It is worth noting that the 2005 CLEAR Act also proposed that the allocation of federal funds to local authorities be made dependent on whether they supported the federal government in the implementation of the immigration laws (Booth, 2006). All these legislations were in an effort to make the state and local governments assume more responsibility in controlling immigration so as to enhance the effectiveness of local law enforcement efforts.
Public opinion on immigration and federalism
Several studies have revealed that a majority of Americans feel that immigration into the United States is out of hand and would wish for better laws to sustain the influx especially of illegal immigrants. In a recent Rasmussen public opinion poll, it was established that one out of every four U.S citizens was very angry about the current American immigration policy. 28% of those who were interviewed expressed frustration with this policy while 62% expressed the need for a stricter border control. As of August 2008, 74% of Americans felt that the federal government was not doing enough to control the borders (Rasmussen reports, 2008). It is precisely because of these sentiments that Congress introduced the above pieces of legislation.
Generally, the devolution of policy making decisions to the state and local governments has received widespread support from the public (Wishnie, 2002). Interestingly however, this particular move has been met with sharp differences in opinion whereby there are those who are in support of the move while others oppose it. Those who are in support of these laws argue that they are essential in order to beef up security especially in the face of recent terrorism attacks among other crimes which are purported to have been committed by aliens.
However, those who oppose the move feel that making local law enforcers responsible for the implementation of these laws will overburden them, making them inefficient in other crucial sectors. Others feel that such a move is ill- advised at it will unnecessarily divert the already scarce local resources from the regular law enforcement functions such as the protection of industrial facilities as well as the channels of commerce.
There are also sentiments that such a move could erode the relationship that local law enforcers have established with the local immigrant communities, thereby impeding the fight against crime as the aliens, especially the illegal ones, become more apprehensive in coming out with information on various crimes as they are afraid of being deported. But perhaps the most significant argument of all against the devolution of immigrant policy implementation from the federal government to the state and local government is that it violates the constitutional principles of federalism by allowing state and local officials to assume distinctly federal roles (Booth, 2006).