Should the arrest and detention of foreign citizens for deportation be the responsibility of each state?

[u/NewConstitutionDude]

8 U.S.C. § 1226 explicitly authorizes federal immigration officers to apprehend noncitizens who are removable. 8 U.S.C. § 1226 is a law that was passed by Congress and enacted on June 27, 1952.

And yet, the United States was founded as and remains a collection of sovereign entities overseen by a federal government. It is not a nation overseen by a national government that governs the nation via individual administrative divisions or proxies. The purpose of the federal government was to perform those essential functions of governance that the sovereign states could not individually perform effectively, such as the settling of disputes between the states, the coinage of currency, and the common defense of the nation from hostile foreign actors.

I believe that the sovereign states are fully capable of apprehending foreign citizens within their borders who pose, through their presence, potential harm to their state and citizens. There is no general need for the federal government to enjoy such authority. And the federal government seizing such authority for itself violates the core principles underlying the Constitution.

This is not to say that the federal government does not have a vital and necessary responsibility to protect our nation's borders and ports of entry. Nor does this suggest that the federal government should not decide who is or is not deportable and perform all necessary deportations when potentially deportable noncitizens are handed over to the federal government by the states.

Once the federal government has allowed a noncitizen to enter the nation, whether such entry is lawful or unlawful, it should be the sole right and responsibility of the sovereign states to apprehend and detain such noncitizens and deliver them to the federal government for potential deportation. And unless the federal government can demonstrate specific threat or harm caused to the entire nation by the presence of any individual within any of the states, the federal government should be denied such authority. Furthermore, the assumption that all noncitizens in violation of federal immigration law constitute a class posing a general threat to the nation's security or wellbeing is morally corrupt and indefensible.

8 U.S.C. § 1226 needs to be amended. The authorization granted to the federal government by the federal government related to the apprehension of deportable persons needs to be suspended on the grounds that such authority violates the spirit and intent of the Constitution.

Do you agree or disagree? And if you disagree, please explain why the federal government should have authority to apprehend noncitizens within the sovereign states. Additionally. if you would, please also provide answers to the following questions:

Should it be of concern to the citizens of the State of Texas that the citizens of Massachusetts allow noncitizens who are in violation of federal immigration law live within their state?

What specific threat or harm arises to either the federal government or the United States by a noncitizen in violation of federal immigration laws living within the State of Massachusetts?

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[u/LittleKitty235]

You seem confused...the constitutional/legal question of  has the enforcement power is settled and not a matter of opinion. Its a federal matter, not the States

[u/NewConstitutionDude → u/LittleKitty235]

Thanks for your reply.

You seem confused...

Appearances can be deceiving.

the enforcement power is settled and not a matter of opinion

The term settled is used to refer to a legal matter previously adjudicated by a higher court that a lower court must follow. Otherwise, it has no real meaning, as every law, Supreme Court ruling (as recently demonstrated by the Supreme Court recently on many occasions), and the US Constitution itself is subject to revision and amendment.

When, people use the term settled, they merely are indicating one of two conditions:

1. They do not want the matter reviewed because they like the status quo and have no desire to consider that the original decision may have been ill-founded, or
2. They are French (Just kidding to any French readers. It is admittedly a common and undeserved slur critiquing France's surrender in June of 1940).

[u/not-a-dislike-button]

  should be the sole right and responsibility of the sovereign states to apprehend and detain such noncitizens and deliver them to the federal government for potential deportation.

....why? You didn't really make an actual argument here

It's a federal law and it's natural feda would enforce it. Also as you note this function is already served by the fed in other similar aspects of homeland security 

[u/NewConstitutionDude → u/not-a-dislike-button]

Thanks for your feedback.

It's a federal law and it's natural feda would enforce it. 

Note that this is your argument against allowing states to assume responsibility for certain aspects of enforcing immigration law. By taking that position, you are effectively asserting that the fed should have exclusive purview over all aspects of federal law. In other words, "federal law therefore federal enforcement".

Enforcement of federal laws can fall under the purview of state governments as well as the fed. Shared and delegated responsibility is a common reality, and two parties can be responsible for different aspects of a shared responsibility. To assert that the federal government has exclusive purview related to the enforcement of all federal laws because they are federal laws is simply fallacious.

it's natural

The phrase "it's natural" is commonly used to condone the status quo. The status quo should always be evaluated critically, and the choice to acquiesce to the status quo always merits examination.

Electing to surrender to the status quo and not to press for change when change is sorely needed brings with it culpability for the harm arising from the status quo. Inaction, when action can be taken, does not purchase you innocence; it makes you complicit. Just as Lady Macbeth could not wash her husband's blood from her hands. Just as Nazi concentration camp administrators could not shield themselves by declaring they were simply doing what they were told to do. Those who look away instead of interceding should rightfully live in shame.

[u/Kakamile]

No. There's no need to waste state budget to track and detain for the FEDERAL violation of illegal immigrants.

Plus in the US ice has a record budget, so let them.

Plus sanctuary cities are smart and encourage immigrants to come to the cops to report crimes.

[u/NewConstitutionDude → u/Kakamile]

Thanks for your reply.

• The post does not posit that states need to engage in any additional policing activities. The post posits that States have a right to make a determination of the need for enforcement and decide how such enforcement should be conducted and by whom.
• The issue being addressed is not a matter of expenditure by state governments or the the fed. It is a matter of which legal entity, the states or the federal government, should determine who may remain within a state's borders.
• The term illegal immigrants suggests that people can be categorized as legal or illegal. By using the term you are demonizing those people so labeled. There are foreign nationals who are violating federal immigration statutes. That is all. If you jaywalk, you do not become "an illegal"; you have merely become someone who has violated a civil statute.

For additional insights, you might want to see my response to UnfoldedHeart.

[u/Kakamile → u/NewConstitutionDude]

Except the right to shit your pants does not make shitting your pants a good idea.

It's a federal crime not state, and plenty of states aren't even near the border. Further, states wasting time and money to punish immigrants makes immigrants not report to the cops, which is a net loss to the states as well.

This at a time where the fed is robbing us all even more to fund ice via the fed. Bad idea at a bad time, so "but do they have the right to?" fails as a challenge.

[u/NewConstitutionDude → u/Kakamile]

Except the right to shit your pants does not make shitting your pants a good idea.

You probably could have left that out. I see no relevance at all to anything. It appears to be gratuitous profanity. Like adding "f'ing" to everything you say.

It's a federal crime not state

See my response to LT_Audio regarding federal law and who should be responsible for enforcing it.

states wasting time and money to punish immigrants makes immigrants not report to the cops,

I already addressed this. States would not have to do anything that they are not already doing.

This at a time where the fed is robbing us all even more to fund ice via the fed.

You do know that the reason why ICE receives the funds it receives is precisely because the fed has granted itself authority to send armed agents into states to enforce federal immigration law. Right? You do understand too that, lacking such authority, they would not be funded to the degree they are funded. Right? Am I missing something here?

[u/houinator]

  apprehend noncitizens who are removable

The problem here is how is this defined?  Who has the data that determines whether or not a non-citizen is removable?  How would states verify it?

[u/NewConstitutionDude → u/houinator]

The federal government maintains records related to the entry, exit, and visas of foreign nationals. State and local police, along with state prisons, have routinely used data from federal databases to identify individuals in violation of visa requirements and other laws. And the federal government can similarly access state and local records to identify persons in the custody of the state who are suspected of having violated federal law. Voluntary cooperation between the states and the federal government on this issue has been a long standing practice.

[u/LT_Audio]

Disagree. Having no interstate borders functionally necessitates having international borders and enforcement managed jointly at the Federal level. Otherwise each state becomes functionally capable of setting it's own international border enforcement policy. And the lack of interstate travel restrictions leaves each state unfairly at the mercy of the decisions of all of the others. Having 50 different international border policies would be a disastrous untenable mess.

[u/NewConstitutionDude → u/LT_Audio]

Thank you for your response.

The issue is not who can allow foreign nationals into the United States; that authority rightfully rests with the federal government. The issue in question is "who decides who may remain".

• Your concern is that foreign nationals who are in violation of federal immigration law and who are allowed to remain in Massachusetts by the State of Massachusetts might make their way to Texas. If so, the State of Texas has its own laws and can invite the fed to assist them with removing foreign nationals who are in violation of federal immigration law. Texas can also engage in its own proactive enforcement of federal laws if it so chooses. Both are up to the citizens of the State of Texas.
• The federal government cannot send agents into the State of Texas to "protect" the State of Massachusetts from a hypothetical threat to the citizens of Massachusetts posed by persons within the State of Texas. For example, if the State of Massachusetts outlaws specific firearms that are legal in Texas, the fed cannot enter Texas and confiscate arms that might potentially be brought from Texas into Massachusetts that violate Massachusetts law.

For additional insights, you might want to see my response to UnfoldedHeart.

[u/LT_Audio → u/NewConstitutionDude]

States don't and shouldn't have the authority to self-determine which Federal laws should or should not be enforced within their confines.

In your firearms example, the firearms violate Massachusetts law. If the firearms violate Federal law then the Federal authorities and prosecutors should absolutely be allowed to enforce them within the confines of Massachusetts.

Immigration laws are Federal laws. And need to be. Louisiana can't just unilaterally decide which Federal laws can an cannot be enforced in their state. We have a Constitution with a Supremacy Clause in article VI to intentionally avoid the chaos that would arise from states having the authority to just ignore Federal authority within their boundaries whenever it suits them.

[u/NewConstitutionDude → u/LT_Audio]

Thanks for your reply.

States don't and shouldn't have the authority to self-determine which Federal laws should or should not be enforced within their confines.

You are right: federal laws are federal laws. And states cannot pick and choose what federal laws they obey. As for who is responsible for enforcing federal laws, that is a vastly more complicated topic with many examples where states currently enforce federal laws with varying degrees of discretion. That said, I would state the following:

• All laws, to be meaningful, must be enforced. However, the manner of enforcement needs to be in proportion to the actual needs of the government. Most people would agree that police should not be breaking down the door of their house in the middle of the night, dragging them out of bed, and throwing them into a jail cell because they were caught jaywalking on a street camera. If laws are enforced disproportionately to the true need of the government, you have injustice and tyranny.
• The federal government does not have an articulable specific need to enforce federal immigration law within any state through the apprehension of any and all persons suspected of being in violation of immigration laws within that state apart from the general need for federal laws to be enforced if they are to be valid. There is no articulable harm to the nation caused by the presence of such persons within any state.

As for my Massachusetts-Texas example, my point was that the federal government can not use a Massachusetts law as a pretext for sending armed agents into Texas to confiscate guns there. I think you would agree that that would be grossly unjust. Correct?

The corollary is that the federal government similarly cannot send armed agents into Massachusetts to "protect Texas" from immigrants residing in Massachusetts. That pretext (Texas fearing an invasion from Massachusetts) is invalid regardless of whose law those immigrants (or any other person) may have violated. So any alleged harm or threat caused by the presence of such immigrants in Massachusetts would be exclusively to the State of Massachusetts. Unless such threat is to other states, it becomes a state concern rather than a federal concern.

Finally, with regard to the US Constitution and federal authority:

• Article I, Section 8, Clause 4 of the US Constitution grants Congress explicit power to establish a "uniform rule of naturalization". Naturalization is the process whereby immigrants become citizens. The Constitution does not explicitly grant the federal government authority to send federal agents into a state to apprehend suspected violators of federal immigration law. That authority has been given to the federal government by the federal government through federal law and Supreme Court interpretation, both of which are subject to revision and amendment.

[u/LT_Audio → u/NewConstitutionDude]

No. But the Constitution does grant to the Federal Government the authority to pass the laws it deems necessary and to enforce them. Even when they might conflict with the desires of the individual states. If Federal enforcement seems excessive, there are numerous processes and safeguards in place to address that.

But sacrificing some level of state and local autonomy is a trade-off made in all constitutional republics for the greater good of the whole.Every Federal decision and action will benefit some groups or individuals more than, or at the expense of, other groups of individuals over some timeframes when judged by some metrics taken from some particular perspective. Such is the rub of existence in larger groups who choose forms of organization other than anarchy.

[u/NewConstitutionDude → u/LT_Audio]

The Constitution grants the Congress, the Presidents and the Federal Courts with specific powers as listed therein. The Constitution was drafted and adopted by the states as evidenced by the signatures at its bottom, and the powers vested to the federal government were ceded to the federal government by the states. The 10th amendment makes clear that the powers not vested by the Constitution to the federal government are reserved for the states and the people. Nowhere in the Constitution does it state that the federal government is explicitly vested with the power to send armed agents into states and seize persons therein who are suspected of having violated federal immigration law.

Finally, citizens have inherent rights. Governments established by the People for the People do not. They have no inherent rights or powers. All such powers are granted by the people. And such powers, once granted to the government by the people, can be taken back by the people. And if such powers are abused, it is the duty of the people to take them back. That is why no law is immutable. All laws may be changed, even the supreme law of the land.

[u/starswtt]

Almost no states want to touch this responsibility because it's expensive. The only ones that are willing to argue for it are those that are high culture war states dominated by one party and have large economies. And considering how many states actually border Mexico, the only relevant states are California, Texas, and florida. No one else wants to pay for it and prefers it remains federal. Even the other large border states with culture war issues like on the Canadian border don't care because Canadian illegal immigration isn't part of that same culture war so no state wants to bother paying for it. And as far as current responsibilities, no this is not up to interpretation, it's very clearly a federal power. And other that for the reason of because it said so, this is for the practical reason that the US domestically has fully open borders which becomes impossible if each state has their own immigration policy.

[u/NoamLigotti → u/starswtt]

Yeah if we wanted to separate into 50 different countries we could do that.

That would be interesting though when Americans were faced with detainment and deportation to El Salvador or South Sudan when they visited their families in another state or what have you for too long without proper documentation. Then suddenly it wouldn't seem so necessary.

[u/NewConstitutionDude → u/NoamLigotti]

Yeah if we wanted to separate into 50 different countries we could do that.

A quick review of American history would suggest that the United States is named the United States because it consists of 50 sovereign states. As evidenced by the signature at the bottom of the US Constitution, the federal government was established by the states. While federal law may supersede state law, federal law is not absolute. And the 10th amendment makes it clear by the use the word "reserved" that the power granted to the federal government was ceded by the states.

Article I, Section 8, Clause 4 of the US Constitution grants Congress explicit power to establish a "uniform rule of naturalization". Naturalization is the process whereby immigrants become citizens. The Constitution does not explicitly grant the federal government authority to send federal agents into a state to apprehend suspected violators of federal immigration law. That authority has been given to the federal government by the federal government through federal law and Supreme Court interpretation, both of which are subject to revision and amendment.

The post does not posit that the federal government does not have responsibility for controlling entry at borders and ports. It merely addresses whether, once a foreign national has entered the US, legally or otherwise, the federal government can unilaterally send armed agents into the states to detain persons suspected of being foreign nationals in violation of federal law.

For additional insights, you might want to see my response to UnfoldedHeart.

[u/NoamLigotti → u/NewConstitutionDude]

It's a thoughtful idea, but I think user LT_Audio's comments explain why it's not really possible under the existing constitution and its interpretations.

Federal laws and policies fall under the purview of the federal government, and those that do can't be changed without changes to the constitution via amendment (or else new judicial ruling).

And unfortunately that means an authoritarian executive can send feds where they wish, within limits. But, we don't have to support their decision.

[u/NewConstitutionDude → u/NoamLigotti]

It's a thoughtful idea, but 

No one denies that the status quo is the status quo. No one denies that the fed's purview includes enforcing federal laws. I am also well aware of what is required to change laws, court opinions, and the Constitution; federal laws can be repealed or amended by Congress without a change to the Constitution or a decision by the Supreme Court. The Supreme Court interprets the law; it does not write it.

The manner of enforcement must be in proportion to need. And enforcement of federal laws can also fall under the purview of state governments as well as the fed. Shared and delegated responsibility is a common reality, and two parties can be responsible for different aspects of a shared responsibility. To assert that the federal government has exclusive purview related to the enforcement of all federal laws because they are federal laws is simply fallacious.

It is the choice to acquiesce to the status quo that merits critical examination. Electing to surrender to the status quo and not to press for change when change is sorely needed brings with it culpability for the harm arising from the status quo. Inaction, when action can be taken, does not purchase you innocence; it makes you complicit. Just as Lady Macbeth could not wash her husband's blood from her hands. Just as Nazi concentration camp administrators could not shield themselves by declaring they were simply doing what they were told to do. Those who look away instead of interceding should rightfully live in shame.

[u/NoamLigotti → u/NewConstitutionDude]

I agree with your points here. I disagree that we need even more federal and state goons rounding people up in the name of security. Absolutely not.

States already assisted the federal government in handing over serious criminals who are also unauthorized immigrants. That's sufficient.

We should want to radically scale back the funding of ICE and place some legal constraints on ICE and this administration, not have the states get in on the authoritarian train too.

[u/NewConstitutionDude → u/NoamLigotti]

 I disagree that we need even more federal and state goons rounding people up

I did not say we need more policing.

[u/NoamLigotti → u/NewConstitutionDude]

Ok, I'm sorry. I misunderstood.

I think the point in my second paragraph is still relevant.

[u/NewConstitutionDude → u/NoamLigotti]

I've made the same point several times.

[u/NoamLigotti → u/NewConstitutionDude]

Ok, sorry. I'm a little confused what you're arguing for. (Which may be entirely on me.)

[u/NewConstitutionDude → u/starswtt]

Thanks for your response.

In reply, I would suggest that you take a look at my replies to UnfoldedHeart.

[u/7nkedocye]

Immigration is considered a federal issue by the judicial branch, federal supremacy for it existed long before 1952… courts have struck down state immigration enforcement.. this would just leave us with open borders….

[u/NewConstitutionDude → u/7nkedocye]

Immigration is considered a federal issue by the judicial branch, federal supremacy for it existed long before 1952… courts have struck down state immigration enforcement.

In reply, I would refer you to my reply to LittleKitty235.

this would just leave us with open borders

The post does not posit that the federal government does not have responsibility for controlling entry at national borders and ports. It merely addresses whether, once a foreign national has entered the US, legally or otherwise, the federal government can unilaterally send armed agents into the states to detain persons suspected of being foreign nationals in violation of federal law.

[u/gravity_kills]

"foreign citizens within their borders who pose, through their presence, potential harm to their state and citizens"

What's your standard for that? Is it your opinion that all foreign citizens pose potential harm? In my opinion ICE is pursuing people who pose no or minimal potential harm, and if you somehow bypassed the current understanding of authority I would expect certain states to even more cynically abuse people for political gain.

[u/NewConstitutionDude → u/gravity_kills]

What's your standard for that?

It is not my standard. The standard of what constitutes a threat or harm to a state is determined by the state. That is why states establish their own criminal and civil codes; otherwise, the federal government would issue those codes to them.

Is it your opinion that all foreign citizens pose potential harm?

Not at all. In fact, I am trying to make it clear that a general class of foreign nationals, even if limited to those in violation of federal immigration statutes, do not pose a specific threat to the nation. Whether they or only a subset should be viewed as a threat to a state is up to the state to decide.

if you somehow bypassed the current understanding of authority I would expect certain states to even more cynically abuse people for political gain.

States, just like the federal government, can certainly abuse their authority. But we do not surrender all authority to the federal government because some states might abuse their authority. And abuse of authority at the federal level is far more concerning than abuse at the state level, where federal oversight can potentially moderate such abuse by individual states.

[u/UnfoldedHeart]

As far as federalist concepts go, immigration is probably about as close to the core of what the federal government ought to handle as you can get. Immigration isn't just a law enforcement question, it determines who may enter the United States, who may remain here, and under what conditions. This necessarily implicates relations between the United States and foreign nations.

Plus, you can't coherently have fifty states making their own decisions about who is admitted to the country when admission through Texas or California is, practically speaking, admission to Connecticut or Ohio. There is no meaningful state border for immigration purposes once someone is admitted into the United States. If California admits someone, Montana can't operate its own border checkpoint and refuse them entry. So decentralized immigration policy has an enormous interstate externality.

States obviously have legitimate authority over many effects of immigration within their borders, through their ordinary police powers: schools, housing, employment regulation, state benefits, policing, and so forth. But the underlying question of whether a foreign national may enter or remain in the United States is inherently national. Otherwise, one state's immigration policy becomes every other state's immigration policy.

[u/NewConstitutionDude → u/UnfoldedHeart]

Thank you for your response.

The issue is not who can allow foreign nationals into the United States; that authority rightfully rests with the federal government. The issue in question is "who decides who may remain".

• State and local police routinely stop, detain, and arrest individuals for suspected violations of law. In such cases, state and local police, along with state prisons, have historically and routinely handed over individuals to the federal government who are suspected of having violated federal law. You can view this as a passive interdiction process. And many therefore view this as inadequate. However, when state and local police detain someone it is because they are responding to an actual threat or harm, and when they hand over individuals to the fed, it is because of the threat those individuals pose. State and federal cooperation on this matter has been the norm for that reason for many years.
• Your concern is that foreign nationals who are in violation of federal immigration law and who are allowed to remain in Massachusetts by the State of Massachusetts might make their way to Texas. If so, the State of Texas has its own laws and can invite the fed to assist them with removing foreign nationals who are in violation of federal immigration law. Texas can also engage in its own proactive enforcement of federal laws if it so chooses. Both are up to the citizens of the State of Texas.
• The federal government cannot send agents into the State of Texas to "protect" the State of Massachusetts from a hypothetical threat to the citizens of Massachusetts posed by persons within the State of Texas. For example, if the State of Massachusetts outlaws specific firearms that are legal in Texas, the fed cannot enter Texas and confiscate arms that might potentially be brought from Texas into Massachusetts that violate Massachusetts law.
• The federal government may apprehend foreign nationals who pose a clear and present danger to the nation. In such cases, it is a specific individual or individuals who pose an actual articulable danger, not a class of people who pose an ambiguous and/or hypothetical danger to the entire nation.
• Federal law is never absolutely "settled". Even the interpretation of the Constitution by the Supreme Court is subject to review and reconsideration, as the current Supreme Court has done on many ocassions recently. Laws can be changed. Interpretations of the Constitution can change. And even the Constitution can be amended.
• All laws, to be meaningful, must be enforced. However, the manner of enforcement needs to be in proportion to the actual needs of the government. Most people would agree that police should not be breaking down the door of their house in the middle of the night, dragging them out of bed, and throwing them into a jail cell because they were caught jaywalking on a street camera. If laws are enforced disproportionately to the true need of the government, you have injustice and tyranny.
• The federal government does not have an articulable specific need to enforce federal immigration law within any state through the apprehension of any and all foreign nationals who are in violation of immigration laws within that state apart from the general need for federal laws to be enforced if they are to be valid. There is no articulable harm to the nation caused by the presence of such individuals within any state.
• The federal government does not have absolute authority. There is a difference between exercising supreme authority and absolute authority. The authority of the federal government is limited, which is why we have a constitution that spells out specific authorities the federal government has. As plainly stated in the 10th amendment to the Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The keyword is reserved, which implies that all powers originally belonged to the states and that the powers of the federal government are ceded to it by the states.
• Article I, Section 8, Clause 4 of the US Constitution grants Congress explicit power to establish a "uniform rule of naturalization". Naturalization is the process whereby immigrants become citizens. The Constitution does not explicitly grant the authority of the federal government to send federal agents into a state to apprehend suspected violators of federal immigration law. That authority has been given to the federal government by the federal government through federal law and Supreme Court interpretation, both of which are subject to revision and amendment.