ID's June 1 editorial comment about New York's decision to opt out of the federal Immigration and Customs Enforcement agency's ("ICE's") "Secure Communities" program, which provides that participating state and local governments must turn fingerprints of arrested ot incarcerated non-US citizens over to the Department of Homeland Security ("DHS") for further action, is correct in one respect: immigration related initiatives by a state or local government ("SOLG") can cut both ways. They can either make enforcement harsher than under federal laws or policies, as in the case of Arizona's punitive S. B. 1070 law, or they can provide some oases of reason and tolerance toward people who are caught up in the cruel and draconian immigration enforcement system by, for example, creating "sanctuary cities". But there is a difference between the legal basis for action by a SOLG in each of these two situations.
In the case of a SOLG which seeks to go beyond federal enforcement efforts without the express authorization of the DHS, there is a clear usurpation of federal power, as the Ninth Circuit Court of Appeals has ruled with regard to Arizona's S.B. 1070 law. True, Arizona may one day succeed in overturning this decision in the right wing dominated Supreme Court under the Orwellian pretext that the state is "cooperating" with the federal government's enforcement policies (by subverting them). But this has not yet happened and hopefully may never happen (even though the Court's recent decision upholding Arizona's employer sanctions law, where the majority, in the words of Justice Sotomayor's dissent, allowed an elephant to go though an exception in the law meant only as a mouse hole, is not a good omen).
But participation by a SOLG in a program with another Orwellian title, "Secure Communities", is based on the opposite rationale - not the theory that a SOLG has inherent power to take immigration enforcement action on its own without the blessing of the federal governemnt, but rather that the SOLG is acting at the express invitation of the federal government. In effect, the federal governnment is saying to the SOLG: "you can't get into the enforcement arena without our permission" - this is the lesson of the litigation over Arizona's S. B. 1070.
But what happens when the federal government has given its permission and a SOLG has entered the arena, such as is the case with "Secure Communities"? Can the SOLG, once in the arena, get out? Or, like ancient Roman gladiators who entered another well-known arena, where the crowds were entertained by their spectacles just as surely as today's anti-immigration crowds are being entertained by the deportations of more than 400,000 Mexicans and other unpopular minorities every year, are SOLG's which have accepted ICE's invitation to join in on the Great Deportation Game ("GDG") now finding themselves in a place from which there is no exit?
The answer to this question lies in the process by which New York State, or other SOLG's, got into the GDG in the first place. This was done though a "Memoradum of Understanding" ("MOA") between the participating SOLG and ICE. What is in these MOA's? Ah, if only we knew. MOA's do not seem to be documents which either side is eager to make public. Hopefully, more information will come out about them, either through more Freedom of Information Act ("FOIA") lawsuits (there has already been at least one), or perhaps by one or more MOA's leaked to the press, or by being made public by a SOLG which, like New York, is trying to escape from the arena before the lions of mass deportation move in.
There is good reason to believe that the participating SOLG's may have been misled into signing the MOA's by ICE's deception on either or both of two crucial points. First, there was evident deception in the DHS's assurances that "Secure Communities" was intended be used mainly against dangerous criminals. To the contrary, according to ICE's own figures, at least half of the people incarcerated or deported under "Secure Communities" had no criminal record, or had been convicted only of minor crimes.
There is also good reason to believe that the real purpose of "Secure Communities" is "Secure Votes" - for the president's re-election. It is no secret that President Obama's advisers have been telling him that he needs more "White Centrist Voters" ("WCV's") to be re-elected. If that means catching 400,000 people per year in the deportation net, locking them up in the death traps known as immigration detention facilities and shipping them out to dump them on the streets of Dakar, Sao Paulo or Mexico City, so be it. Who cares if they had criminal records or not? Certainly not the WCV's, not ICE - and least of all, not the president. No Amnesty for Illegals! ("NAFI!").
The other deception appears to be in the fact that the DHS reportedly initially assured the participating SOLG's that they would be free to opt out of "Secure Communities". DHS now appears to be reneging on that promise. If this pattern of deceit by the federal government, allegedly shown by internal emails or memos that have been made public pursuant to a FOIA lawsuit, can be proven, the MOA's might arguably be invalidated in court on the grounds of fraud in the inception.
This still leaves the question of why New York or other SOLG's which purport to be immigrant friendly would have entered into this devil's bargain with ICE in the first place. Did New York really think that putting immigration detainers on people stopped for driving through red lights would make the people of the Empire State any safer? Or were New York politicians also hoping that joining in on the GDG with federal authorities would help in appealing to CWV's who only care about NAFI! and nothing else?
Whatever the reasons, it seems clear that the SOLG's which signed up for the "Secure Communities" program, which DHS Secretary Napolitano now says has no exit, did not have their eyes open. Faust, even though he was acting on his own and not on behalf of any SOLG, also had a problem trying to get out of his MOA with Mephistopheles. But at least he knew who what to expect when he entered into it.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.