Trump's DHS Inked Immigration Enforcement Agreements with States

Could hamstring Biden's removal moratorium; learning from Flores

By Andrew R. Arthur on January 25, 2021

On January 15, BuzzFeed News revealed that in the last year, DHS signed agreements with a handful of jurisdictions requiring the department "to provide notice of immigration policy changes and allow the jurisdictions six months to review and submit comments before the agency moves forward with any of the proposed changes." The Trump administration plainly learned from the lawsuits against its own policy changes, as those agreements could stop President Biden's 100-day enforcement moratorium in much the same way that the Flores litigation has hamstrung immigration detention.

It appears that BuzzFeed has copies of the agreements, but unfortunately they were not attached or linked, only summarized. For that reason, I will have to base my analysis on the author's description.

BuzzFeed News reported that DHS entered into those agreements with the states of Arizona, Louisiana, and Indiana, as well as with the Sheriff's Office in Rockingham County, N.C. The outlet quotes the Arizona agreement, which ostensibly begins:

DHS recognizes that Agency, like other state agencies and municipalities, is directly and concretely affected by changes to DHS rules and policies that have the effect of easing, relaxing, or limiting immigration enforcement. ... Such changes can negatively impact Agency's law enforcement needs and budgets, as well as its other important health, safety, and pecuniary interests of the State of Arizona.

That statement is undeniably true, and particularly apt as it applies to Arizona.

Arizona, like each of the several states, is "directly and concretely affected by changes" in immigration policy that ease, relax, or limit enforcement of the immigration laws, most concretely as those changes apply to the removal of criminal aliens, but also as they apply to non-criminal aliens, as well.

Earlier in the millennium, Phoenix and its suburbs were the site of lawlessness driven by the area's popularity as a smuggling waystation for illegal migrants into the United States, as I explained in an August 2017 post, "When Metro Phoenix Was Out of Control".

You don't have to take my word for it. In August 2010, the (hardly Trump-friendly) Village Voice referenced Phoenix as "the kidnapping capital of the United States" due to the human and drug smuggling that flowed there from south of the border. And my August 2017 post links directly to news reports of some rather gruesome incidents of smuggling violence in the area.

Finding itself with a serious crime problem and insufficient assistance from DHS, Arizona responded by passing S.B. 1070, the "Support Our Law Enforcement and Safe Neighborhoods Act". Its purpose was to "discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."

Among other things, the bill made it unlawful under state law for a person to fail to comply with alien registration requirements and for illegal aliens to seek employment or work in the state. It also gave state and local law enforcement officers authority to arrest and investigate certain aliens, and to arrest without a warrant an alien whom those officers had "probable cause to believe ... ha[d] committed any public offense that ma[de] the person removable from the United States."

The Obama DOJ filed suit to enjoin these provisions, as preempted under federal law.

The case made its way to the Supreme Court, which held in June 2012 that states have no room to regulate with respect to the alien-registration requirement, and that the employment and warrantless arrest provisions were an "obstacle" to the regulation of immigration by the federal government.

The state could mandate that officers run checks in certain instances to verify a person's immigration status, the Court held, but it was ultimately up to DHS to do anything about any unauthorized aliens found.

In other words, by and large, states and localities were at the mercy of the federal government to enforce the immigration laws, and in particular to remove criminal aliens from their communities.

Of course, not only criminal aliens are an issue. Aliens unlawfully present draw upon public services (like police, sanitation, education, and medical care) in much the same way that citizens and lawfully present aliens do.

Your local emergency room, for example, has only limited ability to turn away emergency patients who are unable to pay for services, and as a general rule hospitals don't. This is a particular issue for Arizona, which is a Covid-19 "hot spot".

Each of these services imposes costs on the community as a whole, which may not be recouped in taxes (especially if the alien lacks employment authorization and/or is working "under the table").

Such non-enforcement is not a purely abstract concept. In fact, that is what the Biden administration's decision to suspend investigations, arrests, and removals of most criminal aliens for the next 100 days does, as my colleague Jessica Vaughan recently explained. Under that policy and the aforementioned Supreme Court precedent, Arizona cannot do anything about those criminal aliens, and in most cases, ICE won't.

There is no indication that Arizona is planning to challenge this policy in federal court, but Texas State Attorney General (AG) Ken Paxton has threatened to do so.

On Wednesday, he sent a letter to DHS Acting Secretary David Pekoske, in which Paxton stated: "This complete abdication of [DHS's] obligation to enforce federal immigration law is unlawful and will seriously and irreparably harm the State of Texas and its citizens."

Apparently, Texas has an agreement with DHS as well, which Paxton referenced:

Border states like Texas pay a particularly high price when the federal government fails to faithfully execute our country's immigration laws. Your attempted halt on almost all deportations would increase the cost to Texas caused by illegal immigration. DHS itself has previously acknowledged that such a "pause on ... removals" will cause "concrete injuries to Texas." See Agreement between Department of Homeland Security and the State of Texas ("Agreement") § 2.

That agreement should be enforceable in federal court (just like the much-litigated 1997 Flores settlement agreement — deemed essentially a binding contract — has been), and will therefore give Texas standing to challenge the Biden moratorium. Whether they are successful in that challenge in a sufficiently timely manner, however, is an open question.

Nonetheless, DHS under Trump gave Texas and other states the ball to counter Biden's policies. That ball is now in AG Paxton's court, and will likely be in a federal court, soon.