The following column was published on March 11, 2017.
In 2010, the Arizona Legislature signed S.B. 1070 into law to address the state’s growing troubles with border security and illegal immigration resulting from the Obama Administration’s unwillingness to enforce federal immigration laws.
The law made it a state crime for an individual (1) to be illegally present in Arizona and (2) to seek employment in the state. It also (3) authorized police to carry out warrantless arrests if they have probable cause that the individual has committed a deportable offense; and (4) required law enforcement to check the immigration status of any person stopped, detained, or arrested.
However, the federal government filed a lawsuit to prevent enactment of S.B. 1070 on the grounds that the above four provisions superseded federal authority in the field of immigration. In Arizona v. United States (2012), the U.S. Supreme Court ruled against the first three provisions, asserting that the federal government indeed holds exclusive power with regards to alien registration.
Justice Anthony Kennedy delivered the majority opinion, noting that Congress intended its federal registration plan to be a “single integrated and all-embracing system,” and does not allow the States to “curtail or complement” federal law or “enforce additional or auxiliary regulations.” Importantly, the court upheld the fourth provision as constitutional because federal law does not preempt it, thus enabling law enforcement officers (LEO) to verify the immigration status of detainees.
The Arizona decision confirms that Congress has left no room for states to intervene in the area of immigration. Yet, on March 6, State Attorney General TJ Donovan, along with the Immigration Task Force that he had convened, issued legal guidelines to Vermont cities and towns that blatantly violate federal laws.
Given that Democrats and advocates for open borders dominated the 11-member task force, it is not surprising that these recommendations plainly obstruct local police from performing their duties and cooperating with federal authorities to enforce immigration laws.
Moreover, the guidance employs linguistic acrobatics to claim that its proposed measures do not infringe federal statutes 8 U.S. Code § 1373 and 8 U.S. Code § 1644. These statutes mandate that state and local agencies must share information about the “citizenship or immigration status, lawful or unlawful, of any individual” with the federal government.
Taking into account the legal precedent set by Arizona v. USA, the reader is encouraged to make his or her own judgment whether the following dictates by the State of Vermont violate federal immigration authority and/ or hinder local law enforcement.
— “Unless ICE or CBP agents have a criminal warrant, they shall not be given access to individuals in the custody of local law enforcement, and local police shall not expend public time or resources responding to ICE or CBP inquiries or communicating with ICE or CBP by providing information beyond what is available to the general public under open records laws.”
— “LEO shall not inquire about the immigration status of crime victims, witnesses, or others who approach the police where such an inquiry is not germane to the investigation. Where such inquiries are appropriate (e.g. investigations of hate-motivated crimes), officers should explain the reasons for making them, unless doing so would compromise the investigation or officer safety.”
— “LEO may inquire about immigration status only when it is necessary to the ongoing investigation of a criminal offense.”
— “Given competing state and local investigative priorities, LEO shall not dedicate time or resources to the enforcement of federal immigration law.”
— “LEO should not detain or arrest any individual based on a civil immigration warrant.” (Note that a civil warrant is sufficient for ICE detainers, but by requiring a criminal warrant instead, the guidelines seek to delay and limit ICE from effectively filing detainers).
In conjunction with Donovan’s “Guidance Regarding Immigration Enforcement,” two bills – H. 228 (House version of Senate Bill 79) and H. 492 — constitute the Scott Administration’s three-pronged approach to establishing sanctuary jurisdiction.
On Town Meeting Day, Calais, East Montpelier, Marshfield, Randolph and Plainfield adopted resolutions, informed by Donovan’s guidance, to become sanctuary towns (WCAX: “Vt. towns challenge Trump’s immigration agenda;” March 7). In addition, Hans von Spakovsky of the Heritage Foundation (a policy institute that routinely advises the Trump Administration) states that H. 492 would “qualify Vermont as a sanctuary state” (Vermont Watchdog; March 6).
Can the Scott Administration continue to maintain that its policies are not pro-sanctuary? Will the seven Republican state senators that supported S. 79 explain their votes? Does Vermont now risk cuts to federal funding (including grants to local law enforcement)? The questions are mounting as political smoke and mirrors obscure the truth, whereas the answers are nowhere in sight.
Meg Hansen is a syndicated columnist from Windsor, Vermont. The Vermont House Republican Caucus consults with her communications firm. All views expressed are those of the author alone.