Posted by: bridget | 14 December 2006

Romney Signs Deal to Detain Illegals, Part I

Outgoing Massachusetts governor Mitt Romney signed a deal with federal authorities that allows state troopers to detain illegal immigrants, solely for being illegal immigrants.  Under the deal, state troopers would be allowed to (but not required to) detain people whom they suspect of being illegal immigrants.  Prior to this deal, troopers were not allowed to detain people on the grounds of illegal immigration alone.

Pachyderm thoughts: As a federalism & constitutional matter, Congress has the right to “establish a uniform law of naturalization,” (Art. I, Sec. 8, Cl. 4), call forth the militia to execute the laws of the nation (Art. I, Sec. 8, Cl. 15), and to make necessary and proper laws for the enforcement of the above.  Obviously, regulation of immigration is under Congressional control.  Congress and the Executive branch can delegate to administrative agencies; it would be absurd to suggest that they cannot also delegate to the states.

The big question is whether or not Massachusetts (or any state) could enforce immigration laws in absence of an agreement with the federal government.  As Art. I, Sec. 10 does not explicitly prohibit states from doing this, arguably, States would be able to detain illegal immigrants, so long as they would defer to the Congressional definition of “illegal.” 

A State’s strongest argument to detain illegal immigrants is either that their illegal status is a per se violation of specific state laws or, that illegal immigrants pose a risk to the health, safety, and welfare of the citizens of that State.  The latter theory may require states to enact legislation that is facially neutral on the subject of immigration but has the effect of sweeping in most illegals.  The pachyderm is perplexed as to why a trooper could not detain a illegal immigrant driver: driving without a license and fraudulently obtaining a license are both arrestable offenses.  (The pachyderm is hard-pressed to imagine how an illegal immigrant could lawfully obtain a driver’s license.) Surely, the Constitution would not be interpreted to strip States of their power to enforce their own laws, or only permit them to enforce laws against legal citizens.

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