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Florida State University Law Review




In the fanfare that surrounded the announcement of the National Security Entry-Exit Registration System,' Attorney General John Ashcroft's comment that the Department of Justice (DOJ) would ask state and local police to enforce both civil and criminal immigration laws seemed like an afterthought. State authorities, DOJ concluded, have "inherent authority" as sovereign entities to enforce these laws, though Ashcroft was careful to limit this invitation to local participation only to "our narrow anti-terrorism mission."

But to attorneys, law enforcement officers, and others working in the immigration field, Ashcroft's announcement was a bombshell. Not only was DOJ's announced position a reversal from previous legal positions taken by the Department (and a departure from existing legal precedent), but the announcement, if put into effect, raises many fundamental questions. If local authorities do indeed have "inherent authority" to enforce federal immigration laws, would they need any legislative authorization (federal or state) to do so? Would their inherent authority be limited only to the immigration law enforcement that advances the "narrow anti-terrorism mission" that Attorney General Ashcroft proposed, or could local authorities expand their enforcement to all immigration laws? And what result if local authorities, declining to exercise their inherent authority, choose not to enforce immigration laws?

Answering these questions requires a fundamental examination of the scope of the immigration power and more specifically, consideration of the constitutional barriers to local enforcement. However, the current debate about local enforcement has largely focused on policy effectiveness and the legal issue of preemption. In the legal debate, courts have focused on preemption analysis--determining what role, if any, Congress intended for local authorities to have in the enforcement of immigration laws. In the policy debate, advocates and opponents of local enforcement have disagreed fiercely about its effectiveness. Advocates argue that local enforcement is necessary to plug up the holes in the nation's immigration system that became so painfully apparent after 9/11. Opponents counter that local enforcement will lead to less, not more, effective law enforcement as immigrant communities become distrustful of local police departments and less willing to report crimes or cooperate in criminal investigations.

Though preemption and policy effectiveness are important issues, a more fundamental consideration, and one that has been overlooked in the current debate, is the constitutional barrier to local enforcement. The immigration power, as derived from specific constitutional powers and from the U.S.'s status as a sovereign entity, must be exercised uniformly. This power, because of its effect on foreign policy, must be exercised exclusively and uniformly at the federal level.

But DOJ's position, because of its voluntary nature and the expansive discretion it gives to local officials, will necessarily violate the constitutional requirement of uniform immigration laws. DOJ's inherent authority position strongly suggests that local authorities may enforce immigration laws without requiring any legislative authorization (either federal or state) and without being restricted to enforcing a subset of the immigration laws, as Attorney General Ashcroft has requested.

And most disturbing for the constitutional mandate for uniform immigration laws, DOJ's position allows local officials to decide, in the first instance, whether to participate at all; those local officials who do decide to participate are subject to different state laws affecting their arrest authority. The result is that federal immigration laws will be enforced differently from state to state and even from town to town. This "thousand borders" problem flies in the face of the constitutional mandate for immigration uniformity.

In Part II, I explain the evolution of DOJ's inherent authority position. I start by examining the norm among local authorities of not enforcing immigration law and then explore the policy reasons why these authorities have chosen nonenforcement. Next I discuss past attempts at local enforcement and the legal and political obstacles that they encountered. I conclude by explaining how the inherent authority position, with its emphasis on voluntary participation, attempts (with mixed results) to avoid these obstacles.

In Part III, I lay out the theoretical framework for my thesis: that the immigration power is an exclusively federal power that must be exercised uniformly. Courts and scholars alike trace the immigration power to two sources: several specific constitutional provisions (including the Naturalization Clause) and the authority that the U.S. government exercises as a sovereign entity. These sources establish a uniform, exclusively federal immigration power. The immigration power must be exercised exclusively by the federal government because of the link between immigration and foreign policy. And the immigration power must be exercised uniformly because of the need for the nation to speak with one voice on foreign policy matters. Courts have struck down state law immigration legislation because of these same uniformity and foreign policy concerns. Because nonuniform enforcement has the same effect as nonuniform policy, nonuniform enforcement is also constitutionally prohibited.

In Part IV, I seek to demonstrate that DOJ's invitation to local authorities to enforce immigration laws violates the constitutional mandate for uniform immigration laws. Looking at the very different reactions among local authorities to DOJ's proposal (some have eagerly embraced local enforcement while others have passed laws strictly limiting this enforcement), I argue that allowing local authorities to choose whether to enforce immigration laws will result in patchwork enforcement, even within the same state. And even if all local authorities within a state agree to enforce immigration laws, their enforcement will likely be different from enforcement in a neighboring state because local authorities are subject to different state laws affecting their authority to make arrests. Taken together, these inconsistencies violate the constitutional requirement for uniform immigration laws and make DOJ's invitation for local enforcement unconstitutional.

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Florida State University College of Law

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