Myths v. Facts: Wicker Sanctuary Cities Amendment to S. 744

June 27, 2013

This amendment’s purpose is to promote greater information sharing between and among local, state, and federal law enforcement officials regarding criminal conduct by illegal immigrants. Federal law already encourages such information sharing. There is no consequence, however, for those jurisdictions that actively choose to violate that law. This amendment seeks to correct that situation by adding some teeth to existing requirements.

The amendment aims to create a uniform policy--instead of a patchwork of policies, whereby some jurisdictions willingly share information with federal authorities while others do not. It does not authorize any states or localities to actively seek out and arrest persons who enter the United States unlawfully, but it does provide a financial incentive to share information.

Myth: Wicker 1462 would force states and localities to engage in immigration enforcement.

Fact: This amendment would not force any state or local jurisdiction to engage in immigration enforcement. It simply clarifies that the U.S. Departments of Justice and Homeland Security cannot provide handouts—in the form of law enforcement grants—to states and localities that adopt policies prohibiting their law enforcement from cooperating with Federal authorities, in contravention of Federal immigration laws.

This language is aimed at jurisdictions that choose to be havens for those who illegally enter or remain in the United States, following the enactment of a bill whose very purpose is to secure our borders. The language would not take effect until six months after the conclusion of the application period for registered provisional immigrant status in S. 744. Thus, it should not affect most of the estimated 11 million undocumented persons who are eligible for the bill’s pathway to U.S. citizenship.

The amendment requires the Federal government to update the Immigration Violators File, which is already part of the National Criminal Identification Center database, to include information that identifies aliens who have been ordered removed and who have overstayed their visas. Such data currently is being added to the NCIC database. This amendment merely affirms existing policy.

The amendment also requires state and local law enforcement simply to assist the Federal government if they have information on illegal immigrants who both violated federal immigration law and have been arrested (not merely detained or apprehended) for crimes under state or local law. Note that an arrestee’s information would go into this database only if collected by state or local law enforcement in the course of a routine arrest (i.e., during the conduct of a police officer’s ordinary law enforcement duties and not for the special purpose of immigration enforcement). Its inclusion also is conditioned on the availability of Federal grants.

Myth: By requiring untrained state and local law enforcement officials to determine who in their custody is “believed to be inadmissible or deportable,” collect extensive information about them, and send that information to the federal government, Wicker #1462 would greatly increase the likelihood of racial and ethnic profiling, as well as wrongful detentions.

Fact: The claim that racial profiling would result from giving enforcement authority to state and local officials is both false and unfairly implies that our nation’s dedicated law enforcement professionals are incapable of acting impartially.

Note that the Wicker amendment would not change any federal, state, or local requirements relating to racial profiling, including those imposed by the Constitution. The Obama Justice Department has adopted “Guidelines Regarding the Use of Race by Federal Law Enforcement Agencies,” which expressly bars law enforcement officers from considering race or ethnicity except in extraordinary circumstances. In these extraordinary circumstances (which include border enforcement, according to U.S. Attorney General Holder), such considerations are permissible only to the extent permitted by the Constitution and the laws of the United States.

Finally, this argument ignores the Wicker language that gives states access to new federal tools by which police officers could more easily determine who is inadmissible or deportable. It provides: “States shall have access to Federal programs or technology directed broadly at identifying inadmissible or deportable aliens.”

Myth: Wicker 1462 would threaten states and localities with the loss of longstanding federal funding, unless they agree to become active participants in this enforcement. This would interfere with the Constitution’s allocation of state and Federal responsibilities, and raises serious Tenth Amendment concerns.

Fact: The amendment merely offers a financial incentive to states and localities to avoid being havens for illegal aliens and to cooperate with federal authorities. The amendment conditions SCAAP funding and law enforcement grant awards on sanctuary jurisdictions’ agreement to stop flouting our nation’s immigration laws.

The Supreme Court has ruled—again and again in other contexts—that Congress has every right to attach strings to federal grant dollars that are furnished to states and localities. It does not impinge on the Tenth Amendment in any way for Congress to do so. For example, Congress can—and does—condition states’ receipt of federal highway grant dollars on their adherence to federal highway safety policies (such as the adoption of state safety laws).

In any event, state and local lawmakers have no right, under the Tenth Amendment, to expect that Congress will provide them with millions of dollars to spend annually for their own law enforcement purposes, without any grant conditions attached to those funds. Lawmakers in jurisdictions that choose to remain, or become, sanctuary cities after the enactment of S. 744 are quite capable of taxing their own residents to meet law enforcement needs: law enforcement is a state and local function, not a federal one.

Myth: Wicker 1462 would also divert state and local law enforcement officers from their core mission of controlling crime and ensuring public safety, jeopardize community policing programs, and penalize states and localities for making policy choices that are theirs to make, such as encouraging crime victims and witnesses to come forward.

Fact: The Wicker amendment provides that an arrestee’s identifying information should be submitted to DHS only if state or local law enforcement collected it pursuant to a routine arrest (i.e., during a police officer’s routine efforts to enforce state or local law)—not for the special purpose of federal immigration enforcement.

The amendment further clarifies that it should not be construed to “require law enforcement officials from States, or from political subdivisions of States, to report or arrest victims or witnesses of a criminal offense,” or “to provide the [DHS] Secretary with information related to a victim of a crime or witness to a criminal offense.”