July 11, 2010

Really? State Officials Are Not Permitted to Enforce Federal Laws?

Monique Chartier

Presumably inspired by the Obama administration's lawsuit against the State of Arizona, commenter and Engaged Citizen David Potts, via e-mail, presents an interesting scenario.

Suppose a RI trooper is patrolling I-95 and he stops a motorist for speeding. As he approaches the offender's vehicle he sees a set of engraving plates for U.S. $100 bills sitting on the passenger seat. Does our hero a) detain the motorist and notify the Secret Service or b) consult his copy of the constitution and, realizing that punishing counterfeiting is a federal responsibility, issue a speeding ticket and send the motorist on his way?

In that vein, Adam J. White at the Weekly Standard hones in on the precedent that may prove to be a stumbling block for the plaintiff in the matter of The United States of America vs The State of Arizona.

The administration's primary obstacle is De Canas v. Bica (1976), in which the Supreme Court emphatically declared that federal immigration laws did not prohibit the states from enforcing the policies embodied by those federal immigration laws. (In that case, the state law was a California prohibition against the employment of illegal aliens.) The Court reviewed the text and history of the federal Immigration and Nationality Act, and found no indication that "Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular." According to the Court, states may enforce laws consistent with federal immigration laws, so long as the state does not "impose additional burdens not contemplated by Congress."
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State and local police can absolutely enforce Federal criminal statutes,including those cognizable under Title 8 which covers criminal immigration violations.
They cannot be primary enforcers of administrative deportation laws except under the 287(g) program,which involves a good deal of training.

Posted by: joe bernstein at July 11, 2010 4:48 PM

This article from the Boston Globe is starting to get national attention:


One wonders why we have not been the target of a DOJ suit.

Posted by: David P at July 12, 2010 1:01 AM

More evidence that the current Federal administration could screw up a one car funeral.

I find that especially alarming regarding foreign affairs, let alone the oil spill response. How much longer before Putin or Ahmadinejad seize an opportunity based on their assessment of President Deer-in-the-Headlights?

Posted by: chuckR at July 12, 2010 12:39 PM

I just thought of something.Failure to carry alien registration(applies to all foreign nationals,legal or not)if over 18 years old is a misdemeanor under Title 8-still a crime,not the "civil infraction so beloved of Steven Brown.Police do have the right to arrest someone for a Federal crime-it still needs to be addressed in connection with another offense because local and state authorities don't have probable cause to stop people at rndom to demand alien registration.Immigration officers do have that authority,but it's not used much away from the border these days.It used to be standard procedure on the job.Gutless government is the reason.They sure know how to come down on talk radio though.F**kers.Check out Michelle Obama's race baiting remarks at the NAACP convention.She never had me fooled for a minute.Just her being a follower of Rev.Wright told me enough.

Posted by: joe bernstein at July 13, 2010 9:19 AM


The Arizona law does make it a state crime for an illegal alien to fail to carry an alien registration document. The law essentially incorporates 8 USC 1304 and 1306 by reference, making violation of those statutes a misdemeanor punishable by no more than $100 fine and twenty days in jail for a first offense. Arizona then goes on to exempt from this penalty any alien who is lawfully present. Obviously Arizona is far more concerned with illegal aliens than with legal aliens committing minor paperwork infractions.

Nothing in the Arizona law contemplates state officials' taking direct action to deport any illegal aliens since, as you pointed out in your earlier comment, as a rule they have no authority to do so. Instead, illegal aliens are to be turned over to federal authorities. However, I did some research at the ICE web site and found that, as of last May, DHS had 287(g) memoranda of agreement with nine different Arizona law enforcement agencies.

By the way I read your comment to Monique's July 12 post and I think your solution to the "anchor baby" issue is probably the best. Right now my birth certificate is conclusive proof of citizenship and no one needs to examine the immigration status of my parents at the time of my birth. If we limit birthright citizenship to those whose parents are lawfully present (a change which would require a constitutional amendment), either physicians would have to be trained as document examiners or we would have to assign ICE agents to each maternity ward to sign off on birth certificates. If the parents' ability to immigrate in the future is conditioned on their immigration status at the time of birth, it would reduce the incentive for women to cross the border to have their babies in the United States.

Posted by: David P at July 13, 2010 1:37 PM

David P-agreed across the board.
When I was an INS agent we arrested legal aliens who were not in possession of resistration,but normally declined prosecution after bringing them in and verifying their status.
Meanwhile we were able to search their vehicles and/or persons pursuant to a Federal criminal arrest.Amazing what we'd find.
Doing a radio check was not sufficient because of the prevalence of impersonation.We had to physically check the file or have a relative bring in the document.

Posted by: joe bernstein at July 13, 2010 2:59 PM
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