The Illinois House and Senate passed, and Gov. J.B. Pritzker signed into law, HB3751, legislation allowing non-citizens, including illegal alien beneficiaries of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) quasi-amnesty, to be employed as police officers and deputy sheriffs in Illinois.
Where Is the Outrage? Everywhere!
My college Elizabeth Jacobs has examined whether the law actually does what it seems to have been designed to do. But regardless of that question, the new law has generated outrage over the fact that it intends to allow non-citizens to be employed as police officers and deputy sheriffs. For instance:
- Illinois State Rep. Chris Miller bemoaned that allowing non-citizens to arrest and detain citizens is disgraceful, and completely erodes the foundation of our Republic”.
- U.S. Rep. Mary Miller (R-Ill.) warned that the bill is “giving non-citizens the power to arrest citizens in our state. No sane state would allow foreign nationals to arrest their citizens, this is madness!”
- Illinois State Sen. Chapin Rose dismissed the bill as “a fundamentally bad idea ... . [Non-citizens] should not be able to arrest a United States citizen on United States soil.”
- Former Chicago mayoral candidate Willie Wilson proclaimed that it “defies common sense that non-citizens should be arresting and detaining legal citizens”.
This outrage generated counter-outrage. For instance, regarding Mary Miller:
- “Mary Miller is a Nazi.” (Hamish1963)
- “Had no idea who Mary Miller was until today and then looked her up. What sorry excuse for a human.” (PyrrhaFan)
- “[Mary Miller] is a literal card carrying fascist.” (BroodFox)
However, the views expressed by Miller and the other Illinois politicians quoted above cannot be simply ascribed to Know-Nothing-ism. They reflect the sentiments of the U.S. Supreme Court circa 1978 in the case of Foley v. Connelie:
Police officers ... are clothed with authority to exercise an almost infinite variety of discretionary powers ... [which] affects members of the public significantly and often in the most sensitive areas of daily life.
[P]olice may, in the exercise of their discretion, invade the privacy of an individual in public places ... . They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant ... or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways.
An arrest ... is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority.
Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals.
Can anyone really argue with that? The Foley Court continues:
[I]t would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions ... . [T]he police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.
Hmmm — “more familiar with and sympathetic to American traditions”. How dare the Supreme Court say that?! Defund the Court! Anyway, thanks, Chief Justice Burger. Makes sense to me.
The new law has also generated a substantial amount of outrage based on allegations that it allows even illegal aliens to become police officers. For instance:
- Florida Gov. Ron DeSantis tweeted that: “To the Left, citizenship is meaningless. Illinois is now letting illegal aliens become police officers ... . No illegal alien should have authority over any American citizen. It is a sad commentary on the state of America that this is even a debate.”
- U.S. Rep. Lauren Boebert (R-Colo.) tweeted that: “In the state of Illinois, illegals can now become police officers. Yes, you heard that right. People who are breaking the law by their presence here can now arrest American citizens.”
Of course, the outrage on the right occasioned counter-outrage on the left. For instance, Gov. Pritzker stated that “I am tired of the right wing twisting things. They put it on Facebook, they tell lies. There are people out there that think we’re just allowing anybody to become a police officer. That’s just not accurate.”
OK, it is true that the new Illinois law doesn’t let any old illegal alien become a police officer. DACA recipients are granted this privilege (as are other illegal aliens who have received work authorization, of which there are more than you would think, such as other recipients of deferred action and illegal aliens who received work authorization subsequent to having applied for asylum). But are aliens illegal even after they get DACA’d? Yes, indeed, they are, sort of.
As the U.S. Department of Justice’s Office of Legal Counsel explained (under the Obama administration), deferred action “represents a decision to openly tolerate an undocumented alien's continued presence in the United States for a fixed period ... [and] carries with it benefits in addition to nonenforcement itself; specifically, the ability to seek employment authorization and suspension of unlawful presence”. And as DHS itself explained (under the Obama administration): “Deferred action does not confer lawful status upon an individual ... although an individual whose case is deferred will not be considered to be accruing unlawful presence [for the purpose of the three- and 10-year bars to admissibility] in the United States during the period deferred action is in effect”.
I should note that last fall, the 5th Circuit Court of Appeals ruled DACA itself to be an unlawful program “manifestly contrary” to federal law, or, more precisely, that the benefits flowing to DACA recipients — including work authorization — are being unlawfully provided. The court concluded that:
DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits. Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them. We agree with the district court's reasoning and its conclusions that ... DACA ... contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization. [Emphasis added.]
The 5th Circuit affirmed a district court’s vacatur of DACA (along with the district court’s stay of that vacatur with regard to existing DACA recipients) and remanded the case to the district court “to review the administrative record in the rulemaking proceeding [culminating in DHS’s promulgation of a final DACA rule in August 2022] and determine whether our holdings as to ... DACA ... fully resolve issues concerning the Final Rule.” The Supreme Court had earlier invalidated the Trump administration’s termination of DACA on procedural grounds without ruling on the question of DACA’s lawfulness.
I should further note that should the district court’s stay of the vacatur of DACA regarding existing recipients be lifted, DACA recipients to whom DHS granted employment authorization would lose such authorization. Jurisdictions in Illinois who hire those DACA recipients as police officers and deputy sheriffs would have to dismiss them or come into violation of civil and criminal provisions of the Immigration and Nationality Act.
How Smart Do You Have to Be to Draft Legislation in Illinois or Sign It into Law?
Illinois Gov. Pritzker tweeted an insult Ron DeSantis’ way:
This man isn't smart enough to be president.
I proudly signed the bill allowing legal permanent residents & DACA recipients in IL to serve their communities as police officers. Our military already does it & it's the right thing to do—no matter what lies the right-wing spreads. https://t.co/BjXHYKMk6D
— JB Pritzker (@JBPritzker) August 1, 2023
But who isn’t smart enough, Gov. Pritzker, you or Gov. DeSantis? Who was spouting lies, or at least untruths, Gov. DeSantis or you when you “emphasized” during a press conference “that the bill would be limited to individuals who are legally allowed to work in the United States”. In fact, the bill you signed into law doesn’t do what you say it does.
True, the legislation does provide that with regard to police officers in Illinois:
An individual who is not a citizen but is legally authorized to work in the United States under federal law or is an individual against whom immigration action has been deferred by the U.S. Citizenship and Immigration Services under the federal Deferred Action for Childhood Arrivals (DACA) process is authorized to apply for the position of police officer, subject to (i) all requirements and limitations, other than citizenship, to which other applicants are subject and (ii) the individual being authorized under federal law to obtain, carry, or purchase or otherwise possess a firearm. [Emphasis added.]
Presumably, such requirements include work authorization under federal law. So far, so good, Gov. Pritzker. But as to deputy sheriffs, you have some ‘splainin to do. The legislation provides that:
The sheriff of any county or the corporate authorities of any municipality may authorize, empower, employ, or permit a person to act as deputy sheriff or special policeman for the purpose of preserving the peace ... who is legally authorized under federal law to work in the United States, and is authorized under federal law to obtain, carry, or purchase or otherwise possess a firearm, or who is an individual against whom immigration action has been deferred by the U.S. Citizenship and Immigration Services under the federal Deferred Action for Childhood Arrivals (DACA) process and is authorized under federal law to obtain, carry, or purchase or otherwise possess a firearm. [Emphasis added.]
Gov. Pritzker, you may not have realized this, but not every DACA beneficiary is authorized to work under federal law. First, DACA recipients must apply for work authorization. Second, DHS will only grant an applicant work authorization “if the alien establishes an economic necessity for employment”. But the legislation you signed authorizes the employment of DACA beneficiaries as deputy sheriffs regardless of whether they have received employment authorization. So you are simply wrong in asserting that the legislation’s benefits are limited to those authorized to work. Further, under the Immigration and Nationality Act, an employer’s knowing hiring or continued employment of aliens unauthorized to work under federal law is unlawful, and a pattern or practice of such hiring or continued employment constitutes a criminal offense. The last thing we need is yet another Illinois governor sent to prison!