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A legal basis for mandatory S-Comm? Read the federal memo

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An October 2, 2010 federal internal memo made public today shows that immigration officials were long ago bracing itself for legal challenges to their position, recently affirmed, that states' participation in the Secure Communities immigration enforcement program is mandatory. And that they were doing so even as confusion continued among states and local jurisdictions, several of which believed that participation was voluntary and could be discontinued.

The U.S. Immigration and Customs Enforcement memo was released today on an immigration advocacy website, obtained via a Freedom of Information Act request. The memo lists and analyzes legal statutes as to whether the agency's plans to roll the program out nationwide by 2013, with mandatory participation, violates the Tenth Amendment of the U.S. Constitution.

The conclusion in the memo is no, though that could be up for interpretation in court. An excerpt:

Our analysis of case law concentrates on Printz v. United States, 521 U.S. 898, 925 (1997), the seminal case on unconstitutional state participation in mandatory government programs. Significantly, Printz holds that “federal laws which require only a provision of information to the Federal Government” do not raise the Tenth Amendment prohibition of “the forced participation of the States’ executive in the actual administration of a federal program.”

…We examine several potential legal challenges and arguments that law enforcement agencies may make to avoid the reach of Secure Communities in 2013, and conclude that each seems rather weak in the face of Printz and its progeny.

The case cited is a landmark decision involving state-federal collaboration and gun purchasing background checks. The ICE memo goes on to paint various challenge scenarios to Secure Communities. It notes that there are statutes relating to immigration information collected by states that "do not provide a legal basis for characterizing participation in Secure Communities as mandatory," but that these are “essentially irrelevant given other statutory support.”

The memo was released last fall just as Homeland Security officials were finally asserting, after months of back-and-forth, that jurisdictions could not opt out of Secure Communities. The program, which allows the fingerprints of people taken at local jails to be shared with immigration officials, began rolling out in late 2008. Many local and state officials had believed that as with an older federal-local partnership program called 287(g), Secure Communities was optional.

It initially appeared so by the Memorandums of Agreement, or MOAs, signed between federal and state/local officials around the country allowing Secure Communities to be implemented. Here is part of the contract with the California Department of Justice, dated January 23, 2009:

This MOA may be modified at any time by mutual written consent of both parties.

This MOA may remain in effect from the date of signing until it is terminated by either party. Either party, upon written or oral notice to the other party, may terminate the MOA at any time. A termination notice shall be delivered personally or by certified or registered mail and termination shall take effect 30 days after receipt of such notice.

The confusion over the nature of Secure Communities, driven by what some state and local lawmakers have characterized as intentional miscommunication by the feds, is evidenced by a series of internal emails between federal, state and other officials released last spring. If anything, the emails illustrated the lack of a cohesive communication strategy as questions began coming in from lawmakers about participation.

For example, in an email dated May 7, 2010 titled “Santa Clara Secure Communities,” an unnamed official wrote to David Venturella, the ICE official in charge of the program:


I just got a call from Congresswoman Lofgren’s staff. They heard from the Santa Clara County Police Chief who said that the County was forced into Secure Communities and told they had no choice in the matter by ICE as well as the State.

Do you have any info on this? It’s my understanding that the MOA is with the state and that counties can opt in. Needless to say, Lofgren is up in arms about this. If I can get them an answer tonight it would probably be best.

As the rollout continued, a growing number of cities and counties began voicing concerns about how the program might potentially alienate immigrant communities and impede policing. By last summer, the governors of Massachusetts, Illinois and New York had announced plans to withdraw from Secure Communities, and California’s state Assembly had passed legislation that would allow the state to renegotiate its contract, allowing local jurisdictions to opt out.

Then in August, ICE director John Morton put an end, at least temporarily, to these moves after he sent out a letter to governors terminating all existing MOAs with the agency. The letter clarified “an issue that has been the subject of substantial confusion,” i.e. that states must participate.

The October 2010 memo was posted today on the Uncover The Truth website, a collaboration between the National Day Laborer Organizing Network and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, who together obtained the document.

With all the wrangling, there's a good chance the Secure Communities issue could wind up in court. Along with the October 2010 memo, the site today also posted what it characterized as an earlier memo also citing the Tenth Amendment, and how the federal government cannot compel states to implement "federal regulatory programs."

That memo offered definitions of Secure Communities (SC) as not technically being a "program." But it also warned that "a court may find that SC's infrastructure, purpose, and activities mark it a program, and, thus, that ICE cannot compel LEAs (law enforcement agencies) to participate."