(Note: This is the fourth and final item in a series analyzing enforcement-related portions of the executive action authorized by the president.)
Department of Homeland Security (DHS) Secretary Jeh Johnson testified before the House of Representatives on December 2 that he thinks it's a "bad idea" for Congress to consider a short-term funding bill in lieu of full funding for his department, so that it can implement the stunningly broad sweep of "executive actions" on immigration announced by the president during a nationally televised speech on November 20. He may think so, but it's not at all clear why the House should adopt that view given the executive branch usurpation of authorities granted to the legislature under Article I of the Constitution, and the undermining of an entire system of federal immigration laws.
Concurrent with the president's speech, Johnson issued a series of 10 policy memos outlining the various programs covering 10 key areas that would constitute this "executive action".
One of the 10 memos announced an end to Secure Communities, a program that uses electronic matching of fingerprints to identify alien criminals in near-real-time among the people arrested by police nationwide. It's to be replaced with a new "Priority Enforcement Program (PEP)" ... that uses electronic matching of fingerprints to identify alien criminals in near-real-time among the people arrested by police nationwide.
Don't think, though, that this is just a re-branding of Secure Communities under a puerile new name such as "PEP" in order to escape the controversy that has been its hallmark. Most assuredly it's not — the changes are substantive and damaging.
In Johnson's words: "[I] direct the assistant secretary for intergovernmental affairs to formulate a plan and coordinate an effort to engage state and local governments about this and related changes to our enforcement policies. I am willing to personally participate in these discussions." (Emphasis added.) One wonders whether such meetings are the best use of a federal cabinet officer's time, given the onerous demands that engaging with thousands of state and local agencies would entail, but that's one for his assistant secretary to figure out and explain to the boss.
More relevant is whether Johnson is really naïve enough to think that what he is ordering will change the landscape. Is his hubris so large as to believe that because he engages, the future portends harmony with illegal alien advocacy groups, and with state and local governments that resist immigration enforcement? Apparently so, notwithstanding that the administration caused the controversy in Secure Communities to begin with by misrepresenting participation as voluntary (it is not), and contrary to all evidence that any level of immigration enforcement — even against criminals — is more than the open-borders groups will accept.
To fully understand the damage caused by the end of Secure Communities, Johnson's memo must be read in conjunction with another he issued, directing changes to enforcement priorities. Among other things, the changes oblige immigration agents to walk away from aliens who have:
- Been convicted of crimes not covered by the new "priorities";
- Repeatedly crossed the border illegally — even though reentry after deportation is a federal felony — when they are encountered and arrested by state and local police (how, one wonders, does the administration think that enhances border security and deterrence?); and
- Been ordered deported by an immigration judge, but fled in lieu of complying.
Perhaps the most damaging aspect of the new "PEP" rules is that, henceforth, immigration agents will be forbidden to file detainers to hold aliens arrested by police until they can arrive to take custody of them. Instead, agents are limited to asking police to notify them in advance of the alien's release date so that they can show up in a timely manner if they wish to assume custody. That's unworkable for many reasons.
First, if a state or local agency is resistant to honoring detainers, there's no reason to think they will acknowledge such requests. Second, even if inclined to cooperate, they don't always know when an alien will be released (for instance, when he will post a bond), and so won't be able to alert DHS's Immigration and Customs Enforcement (ICE) component quickly enough for ICE agents to respond. Third, even if they were to provide ICE with as much as, say eight or 10 hours' notice, that isn't always enough time for ICE to dispatch agents to a jail soon enough to take custody — ICE field offices can be hundreds of miles away from some city and county jails in their jurisdiction and transportation resources are limited.
It's also important to point out that if ICE agents are obliged to go out and seek an alien criminal once he has been released from police custody, both they and the public at large are at greater risk of injury than if the agents were receiving him directly from local law enforcement officers in the secure constraints of a jail setting — especially since the alien offender at the point of release is likely to know they are aware of, and looking for, him.
While over 200 state and local police and sheriff's departments already refuse to honor detainers, most of the blame for that rests on the shoulders of DHS and ICE leaders. Many of those state and local agencies would like to honor detainers, but have seen that, when sued, ICE melts away from its law enforcement "partner", leaving the local agency to take the hit. Others decided not to cooperate when an acting ICE head penned a letter describing detainers as "voluntary" despite a federal regulation to the contrary. That description echoes the initial misrepresentation the agency made about participating in Secure Communities.
It's notable that there was no legal justification underpinning the letter, and equally notable that Secretary Johnson makes no mention whatsoever of the effect that it had on decisions by state and local police agencies to forego honoring detainers, especially when faced with "going it alone" (to use the president's phrase) if confronted by a lawsuit.
Finally, there is Johnson's shameless attempt to tie his decision on abandoning ICE holds to recent court decisions finding they may violate the Fourth Amendment. That is a deliberate misreading of the recent cases. One of the cases was brought because ICE mistakenly filed a detainer against a United States citizen, not an alien. Another case involved holding the alien significantly longer than 48 hours beyond his release date (what the regulation requires). Certainly the particular facts of such cases implicate the Fourth Amendment; but they do not implicate the constitutionality of detainers generally.
It is also significant that courts have begun to take judicial notice of the detainers-are-voluntary letter mentioned above, and used the legal argument of affording "due deference" to an agency's own interpretation of law and regulation to find against state and local agencies when sued for honoring detainers. Again, none of that is discussed by Johnson.
Until the effort to undermine detainers began in earnest, detainers were a critical tool in the efficient (and taxpayer-effective) apprehension of alien criminals and recidivists. In 2013, ICE agents and officers filed 212,455 detainers with various police and correctional agencies. But according to a recent report from the Syracuse University Transactional Action Clearinghouse (TRAC), ICE detainers have dropped 39 percent since 2012. Interestingly, the report tells us that "TRAC shared its findings with ICE and asked the agency for insights into what was driving this downward trend. However, ICE declined to comment on why its agents were issuing fewer detainers." That non-response beggars belief.
It's pretty clear that the president, his politically minded cabinet, and their kowtowing mandarins within the immigration agencies have actively worked to undercut the detainer authority because they didn't want to antagonize their base and now, in a classic example of disingenuous circularity, have used the court decisions, which in turn were relying on their baseless interpretation of voluntariness, to justify scrapping detainers in their entirety.
The president can say what he wants about wanting to focus on criminals, not families. It's bunk. In 2013, ICE released over 36,000 criminals from custody, including serious offenders such as murderers and sex offenders, because they somehow didn't meet the endlessly shifting enforcement and detention priorities.
There is no reason to think things are going in the right direction with the new executive fiats ending Secure Communities and use of detainers, and there is no reason for Congress to be so foolish as to give the president an open purse with which to violate the Constitution.