It's That Old Patchwork Quilt Again

By W.D. Reasoner, August 16, 2011

Earlier this month, Director John Morton of Immigration & Customs Enforcement (ICE) publicly announced that the federal government had terminated memoranda of agreement (MOAs) with several state signatories regarding ICE's Secure Communities program.

According to news reports, this is because the MOAs "may have given a false impression that participation was optional."

Of course they did – and ICE and its parent Department of Homeland Security (DHS) did much to encourage that false impression, even though as far back as August 2009, ICE Secure Communities leaders were in possession of an analysis which clearly laid out the basis in federal law for them to undertake the program without state approval. Notwithstanding the analysis, ICE and DHS continued to make confusing, uncertain, and downright contradictory statements about the ability of states or localities to opt out of the program. This should not be a surprise to anyone. Since day one, this administration and its political appointees, including those charged with enforcing the law, have engaged in a bobbing-and-weaving exercise – dodging left, then feinting right – pretending to be all things to all people; an exercise doomed to failure where immigration enforcement is concerned, as any novice should have been able to discern.

The straw that broke this particular dithering camel's back appears to have been that some key states, such as Massachusetts, refused to sign the Secure Communities MOA and others, such as Illinois and New York, terminated previously signed MOAs and refused to participate further. ICE was left to either abandon the program after three years and hundreds of millions of dollars of effort … or acknowledge publicly what they had known for at least two years, and should have known all along: state and local "permission" is unnecessary for the federal government to do its job in enforcing the immigration laws of the United States.

The angry vocal reaction from open borders advocates was immediate, predictable, and ironic in light of their prior lauding of the Justice Department's lawsuit against Arizona, citing a disregard for local prerogatives and community policing (even though there is absolutely no empirical evidence that local law enforcement support for federal immigration enforcement adversely affects community policing efforts). Now they have taken the next step and, by way of collaterally attacking the Secure Communities program, filed a lawsuit against the government, alleging that the ICE practice of lodging detainers ("holds") with local police against criminal alien suspects is unconstitutional.

Some months ago on his own initiative, ICE Director Morton had already watered down the language used on ICE's detainer form and substantially restricted the conditions under which ICE officers and agents are permitted to lodge them. That apparently was not enough to satisfy the open borders advocates and special interest groups, which are determined to gut the Secure Communities program by one means or another.

It is time for DHS and the Justice Department to abandon the shucking and ducking, and get behind its enforcement officers. How the federal government responds to this lawsuit will reveal much about this administration's real immigration enforcement agenda. If they are not vigorous in defending the practice of filing detainers (which, parenthetically, is used by officers of other DHS organizations such as the Border Patrol, as well), it may signal to sanctuary cities and counties that their police organizations are free to disregard them, leaving alien criminals by the thousands to melt back into local communities when released, to the detriment of their citizenry.