Attorney General's Power: Immigration Lawmaking

The power to set immigration laws and policies is reserved exclusively for the federal government in the US. However, a coalition of 26 state attorneys general is calling for the authority to enforce federal immigration law when the federal government fails to do so. The bill, known as the Immigration Enforcement Partnership Act, would allow state attorneys general to request that the Department of Homeland Security (DHS) fulfil its duties related to immigration enforcement. If DHS fails to comply, the state attorney general may sue. While the Pennsylvania Office of Attorney General does not enforce immigration law, it does have several units that enforce state and federal laws affecting the legal rights of immigrants.

The role of state attorneys general in enforcing federal immigration law

The U.S. Constitution gives the federal government the exclusive power to set immigration laws and policies. However, state and local law enforcement officers have a role in enforcing these laws. For example, federal law permits officers to arrest and transfer to the custody of the INS any alien of national security concern who has violated immigration law.

Congress has created avenues for the participation of state and local officers in enforcing federal immigration laws. One of the broadest grants of authority for state and local immigration enforcement activity stems from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which amended the INA. This provision authorizes the Secretary of Homeland Security to enter into a written agreement with a state, pursuant to which a qualified officer of the state may perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.

State attorneys general do not enforce immigration law per se, but they do have several units with jurisdiction to enforce state and federal laws affecting the legal rights of immigrants. These include the Civil Rights Enforcement Section, Fair Labor Section, Bureau of Consumer Protection, and Impact Litigation Section. For instance, immigrants, regardless of their status, are protected from unlawful discrimination in employment, education, housing, and public accommodations on various bases, such as race, national origin, religion, sex, disability, and age.

In a joint statement, the attorneys general of 13 states, including Massachusetts, California, and New York, asserted that the U.S. Constitution prevents the federal government from commandeering states to enforce federal laws. They emphasized that while the federal government may use its resources for federal immigration enforcement, state and local law enforcement cannot be compelled to do so.

The U.S. Constitution and immigrants' rights

The U.S. Constitution does not specifically mention the term "immigrant" or "immigration", but it does provide certain protections for non-citizens. The Fifth Amendment, for example, states that "no person" shall be deprived of life, liberty, or property without due process of law. The 14th Amendment guarantees all persons within the U.S. the right to equal protection under the law. This has been interpreted by the Supreme Court to mean that undocumented children cannot be prohibited from enrolling in public school. The Constitution also protects persons from unreasonable searches and seizures, regardless of their immigration status.

The U.S. Constitution gives Congress the power to set immigration laws and policies, and this power is exclusively reserved for the federal government. The American Bar Association's Immigration Law Committee plays a key role in the development of immigration law and policy.

While the U.S. Constitution provides certain protections for non-citizens, it is important to note that undocumented immigrants may face different types of relief available to them, depending on their status. Additionally, the various laws generally protect complainants against retaliation for making complaints.

In terms of civil rights, immigrants, regardless of their status, are protected from unlawful discrimination in employment, education, housing, and public accommodations on various bases, such as race, national origin, religion, sex, disability, and age. Federal law prohibits employers from engaging in citizenship discrimination or document abuse. Immigrants are also legally entitled to engage in union organizing and other concerted activities.

In the state of Pennsylvania, the Office of the Attorney General does not enforce immigration law, but it does have several units with jurisdiction to enforce state and federal laws affecting the legal rights of immigrants, including the Civil Rights Enforcement Section, Fair Labor Section, Bureau of Consumer Protection, and Impact Litigation Section.

Civil rights laws and immigrants

While the US Constitution reserves the power to set immigration laws and policies exclusively for the federal government, immigrants have constitutional rights and statutory protections in the areas of civil rights and hate crime, fair labour standards, and consumer protection. The Pennsylvania Office of Attorney General, for example, does not enforce immigration law but has several units with jurisdiction to enforce state and federal laws affecting the legal rights of immigrants. These include the Civil Rights Enforcement Section, Fair Labour Section, Bureau of Consumer Protection, and Impact Litigation Section.

Civil rights laws protect immigrants from unlawful discrimination in employment, education, housing, and public accommodations (e.g. restaurants, hotels) on bases such as race, national origin, religion, sex, disability, and age. For example, it would be a violation of civil rights if a Middle Eastern family was denied an apartment due to their race, colour, national origin, or religion. Federal law also prohibits employers from engaging in citizenship discrimination or document abuse. Immigrants, regardless of their status, are legally entitled to engage in union organizing and other concerted activities, as well as to minimum wage and overtime pay.

Consumer protection laws also protect immigrant consumers from unfair and deceptive trade practices. For example, a business that falsely advertises that it can legally represent customers before federal immigration authorities would be in violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

The American Civil Liberties Union (ACLU) works to defend and preserve the individual rights and liberties that the US Constitution and laws guarantee everyone in the country. The ACLU Immigrants' Rights Project is dedicated to expanding and enforcing the civil liberties and civil rights of immigrants and to combating public and private discrimination against them.

Immigration enforcement and border security

The role of the Attorney General's office in immigration enforcement varies. While the Attorney General does not directly make immigration laws, they play a crucial role in upholding the legal rights of immigrants and ensuring compliance with state and federal laws. The Attorney General's office also directs federal prosecutors to investigate any obstruction of immigration enforcement and take necessary steps to secure the border.

The Pennsylvania Office of Attorney General, for example, has several units dedicated to protecting the legal rights of immigrants, such as the Civil Rights Enforcement Section, Fair Labor Section, Bureau of Consumer Protection, and Impact Litigation Section. These units enforce laws prohibiting discrimination in employment, education, housing, and public accommodations, regardless of immigration status.

Additionally, the Attorney General's office may provide legal advice and support to ICE and other law enforcement agencies. For instance, the Office of Principal Legal Advisor (OPLA) within ICE serves as the legal representative of DHS in deportation and removal proceedings. OPLA also advises ICE personnel on their law enforcement authorities and provides legal services to all ICE programs.

Furthermore, the Attorney General may prioritize seeking sanctions against attorneys and law firms that engage in unethical conduct related to immigration proceedings, such as coaching clients to lie or conceal information. This helps maintain the integrity of the immigration system and ensures compliance with federal regulations.

In summary, while the Attorney General does not directly make immigration laws, they play a vital role in immigration enforcement and border security by upholding immigrants' rights, directing federal prosecutors, providing legal support to enforcement agencies, and ensuring ethical conduct in immigration proceedings.

The Attorney General's role in litigation

The Attorney General is the head of the United States Department of Justice and the chief law enforcement officer of the federal government. The Attorney General acts as the principal legal advisor to the president of the United States on all legal matters. They advise the president on appointments to federal judicial positions and Department of Justice roles, including U.S. Attorneys and U.S. Marshals.

In addition to these duties, the Attorney General also performs or supervises other tasks as required by statute or executive order. This includes managing legal issues involving public safety, civil rights, and national security, as well as communicating legal concerns to Congress and ensuring compliance with federal laws across states. The Attorney General is also responsible for seeking sanctions against attorneys and law firms that engage in frivolous, unreasonable, or vexatious litigation against the United States. They are also responsible for enforcing regulations governing attorney conduct and discipline, and for recommending additional consequences for misconduct, such as reassessing security clearances or terminating federal contracts.

While the Attorney General does not enforce immigration law, they do have jurisdiction to enforce state and federal laws affecting the legal rights of immigrants. This includes civil rights, fair labor standards, consumer protection, and more. The Attorney General's role in immigration-related litigation is to ensure that the rights of immigrants are protected and that they are not subjected to unlawful discrimination or retaliation for making complaints.

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