Today (June 8) the New York Times carries an editorial, Resistance Grows, praising Massachusetts Governor Deval Patrick for joining New York State, Illinois and other jurisdictions like the City of San Francisco for refusing to participate in the Secure Communities Program [SComm], which partners federal, state, and local agencies for the purpose of immigration enforcement. California may very likely be next. Stopping SComm is very high on the liberal—for blatant Electing-A-New-People reasons.
The Obama administration has repeatedly gone back and forth as to whether or not it will allow states to opt out of SComm. In May, Janet Napolitano claimed
"Where immigration is concerned, the federal government fundamentally sets the policy. And just as states can't, on their own, have a 1070, this is kind of the flip side of that, nor can they exclude themselves from an enforcement tool that we are using."
[Can San Francisco be forced to participate in Secure Communities, By Rina Palta, San Francisco Chronicle, May 9, 2011. Link added.]
But the most that ICE would say after San Francisco opted out was to call the decision "unfortunate."
Barack Obama sued Arizona over its SB 1070 on the alleged grounds that we cannot have different states and localities having different immigration enforcement policies. The obvious next question: whether or not he would apply this standard to "Sanctuary Cities"—cities which explicitly refuse to enforce the law against illegals.
It would seem to be a no brainer. After all, Arizona was merely trying to enforce federal law; Sanctuary Cities are actually defying it.
However, this would be to assume that the Obama administration's policy was based on the rule of law and some level of internal consistency.
A spokesman for attorney general Eric Holder rationalized inaction this way:
"There is a big difference between a state or locality saying they are not going to use their resources to enforce a federal law, as so-called sanctuary cities have done, and a state passing its own immigration policy that actively interferes with federal law."
[Justice: Sanctuary cities safe from law, By Stephen Dinan, Washington Times, July 14, 2010]
The absurdity of this statement is amazing even by Obama/Holder standards. SB 1070 explicitly mirrors federal law. And US Code 1644 states that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual".
Because of this pesky fact, the Obama Justice Department came up with a novel interpretation of immigration law. It argued that the issue is not interfering with the letter of the law, but that Congress gave the president power to exercise "enforcement discretion" to decide what illegal aliens to enforce the law against.
According to the Justice Department's lawsuit against Arizona:
"federal government prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to national security or a risk to public safety…principally targets aliens engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants; and fugitive aliens, especially those with criminal records…"
In other words, according to the Justice Department, if Arizona contacted ICE about illegal aliens who are not also rapists, gang members, or terrorists, this would interfere with the Feds' ability to go after these "target aliens". [The United States of America v. The State of Arizona, (PDF)]
In issuing and then upholding the injunction against SB 1070 respectively, both District Judge Susan Bolton and Appeals Judge Richard Paez accepted this argument. In Paez's words, SB 1070 "interferes with the federal government's prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws." [US vs. State of Arizona, 9th Circuit Court of Appeals, April 11, 2011 (PDF)]
But how exactly does the Obama administration plan to enforce laws according to these priorities? In a brief supporting the Justice Department's lawsuit, Daniel Ragsdale, Obama's Executive Associate Director for Management and Administration at U.S. Immigration and Customs Enforcement, stated,
"Consistent with its policy of focusing enforcement efforts on criminal aliens, ICE created the Secure Communities program [SComm] to improve, modernize, and prioritize ICE' s efforts to identify and remove criminal aliens from the United States."
Thus the Obama administration has actually hailed the SComm as a reason why laws such as SB 1070, and to a lesser extent the 287(g) program, are not necessary.
SComm was established in the final year of the Bush administration. It has increased the deportation of criminal aliens, which the Obama Administration has been claiming credit for, while overall deportations have fallen. Participating local law enforcement agencies run the fingerprints of those arrested through ICE databases to see if the match criminal aliens. Based on the severity of the crimes, ICE decides how to prioritize them on three levels.
"Level 1–Aliens convicted of 'aggravated felonies'…[or] two or more…'felonies'. Examples include major drug offenses, national security crimes, and violent crimes such as murder, manslaughter, rape, robbery and kidnapping.
"Level 2–Aliens convicted of any felony or three or more …'misdemeanors.' Examples include minor drug and property offenses such as burglary, larceny, fraud, and money laundering.
"Level 3–Aliens convicted of crimes punishable by less than one year"
[Department of Homeland Security, September 29, 2010 (pdf)]
ICE officials then use discretion on who to deport, focusing primarily on the Level 1 and 2 offenders.
This is better than nothing, but it is far from ideal. Most illegal aliens are literally "undocumented", so if they have not previously been arrested or deported, they will not show up in the databases. In fact, given sanctuary policies across the country combined with inaction on the federal level, they could very well have been arrested several times and never been reported to ICE—like the Railroad Killer, Angel Resendiz.
In contrast, the 287(g) program, which Obama has greatly restricted, closes these loopholes. As the Center for Immigration Studies' Jessica Vaughn notes,
"The local 287(g) officers can determine the status of aliens who have not had contact with immigration agents – mostly recent illegal arrivals committing their first non-immigration crime, or people admitted on border crossing cards, who are not fingerprinted upon entry like visitors from most other countries."
(Vaughn also notes that "Secure Communities prioritizes which criminals will be subjected to immigration law, while the HCSO 287(g) officers try to process virtually every alien offender who is removable." [A Tale of Two Programs: Secure Communities vs. 287(g), March 12, 2010] However, as we are taking Obama's emphasis on enforcement "priorities" at face value, we will put Vaughn's final objection on hold.)
So states and cities that opt out of the SComm undercut Obama's claimed concept of "enforcement discretion" and "priorities" to a much greater degree than SB 1070. While the law empowers local police to request the legal status of potential illegal aliens, ICE is unfortunately not required to do anything about it, so it's no waste of federal resources for them to receive the requests.
Congressman Lou Barletta gave an example of this very problem on introducing his Mobilizing Against Sanctuary Cities Act (more on that in a future column):
"Four weeks ago, just a few miles from here [Hazleton, PA], a police chief stopped an illegal alien who has been in the country for six years. This man didn't know his address. He had an arrest record. He had no job. He had $3,000 in cash in his pockets. He had two public benefit access cards. And the federal government told the police chief to let this illegal alien go." [U.S. Rep. Lou Barletta unveils bill cutting federal funds for 'sanctuary cities', May 31, 2011]
(Welfare-abusing criminals are apparently not a "priority" for ICE. But I digress.)
Barletta's example shows that ICE could, and probably would, ignore every single request coming from Arizona. The problem, according to another ICE bureaucrat David C. Palmatier's brief against SB 1070, is that the law "will inevitably result in a significant increase in the number of IAQs [Immigration Alien Queries]", which will reduce "our ability to provide timely responses to law enforcement on serious criminal aliens."
According to Palmatier's testimony, ICE processed approximately a million IAQs in 2009, and, supposedly, Arizona would make ICE "process thousands of additional IAQs annually."
But Visa processes 38 billion credit and debit card transactions (not dollars, individual swipes of the card) each year. Somehow I find it hard to believe that with modern technology it's that difficult for ICE's computers to process these applications.
Again, however, taking the Obama administration at its word, slowing down this system seems like a much less of an impediment to deporting "target aliens" than having entire states turn them loose.
In fact, ICE acknowledges as much. ICE spokeswoman Virginia Kice responded to San Francisco's abdication from the program by saying "The identification and removal of many criminal aliens would not be possible without the cooperation of our state and local law enforcement partners." [ICE: SF Sheriff's Decision To Release Some Undocumented Immigrants "Unfortunate", by Bay City News, May 6, 2011]
(I should qualify that opting out of SComm is not an ipso facto violation of the aforementioned anti-sanctuary statutes. They could communicate with federal authorities with other tools such as 287(g) but San Francisco and other jurisdictions opting out do not.)
Moreover, SB 1070 is not even remotely in violation of any statute—but that did not keep Obama from suing Arizona over this bogus notion of enforcement priorities.
Even by the Obama's administration's twisted logic about prioritizing the enforcement against criminal aliens, he should crack down on every state and locality that opts out of SComm. So the fact that Obama will not act against New York or San Francisco clarifies Obama's motivation for suing Arizona.
It has nothing to do with federal pre-emption doctrine or "enforcement priorities." Obama simply does not want to enforce U.S. immigration law—period.
But with the recent Supreme Court decision validating the Arizona workplace ID law, and more states following in Arizona's lead, illegal aliens will start moving from Arizona and Georgia to New York and San Francisco. Even Democratic voters will not stand for the increased crime and social problems this will bring. Eventually, it will bring down the Sanctuary mayors and governors.
It might just bring down Obama.
"Washington Watcher" [email him] is an anonymous source Inside The Beltway.