Immigration and Nationality Law Review
After 9/11, Attorney General John Ashcroft announced that state and local authorities have "inherent authority" as sovereigns to enforce federal immigration laws. This announcement, a reversal from previous legal positions taken by DOJ, sent shockwaves through the immigrant and law enforcement communities. Previously, immigration law had been treated, both by law and in practice, as the exclusive province of the federal government.
This article considers the constitutional barriers to local enforcement. Although the fascinating interplay among immigration law, national security and anti-terrorism, and federalism has been highlighted in some of the debate up to now, the federalism-related issues go beyond mere preemption and require a fundamental examination of the proper scope of the federal immigration power. Specifically, this article argues that there is a constitutional mandate for uniform immigration laws, and DOJ's position will lead to uneven enforcement of immigration laws in violation of that mandate. As proposed by DOJ, local authorities decide for themselves whether to enforce immigration laws, and then, if they agree, they will be bound by different state laws affecting their arrest powers. This proposal will result in an unconstitutional "thousand borders," as the same immigration violation will be enforced in one jurisdiction but not in another, perhaps neighboring, jurisdiction.
The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, Immigr. & Nat'lity L. Rev.,
Immigr. & Nat'lity L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/127