Gavin Howe
Whether local police can voluntarily enforce federal law is a complex issue that has been the subject of much discussion and legal debate. While the Tenth Amendment to the United States Constitution reserves powers not delegated to the federal government to the states, the federal government has been limited in imposing laws on states in certain matters. For example, in New York v. United States, the Supreme Court held that requiring states to regulate low-level radioactive waste according to congressional regulations was an attempt to compel the States to enact or administer a federal regulatory program, which violated the federal structure of the government. In terms of immigration law, federal law explicitly authorizes state and local police officers to enforce certain provisions, such as investigating and arresting suspected violations of immigration law. However, it is not entirely clear if they can enforce civil provisions of federal immigration law outside of these specific circumstances. The ability of local police to enforce federal law may also depend on the specific jurisdiction and the nature of the crime involved.
| Characteristics | Values |
|---|---|
| Can local police enforce federal laws? | In some cases, yes. |
| Can local police enforce federal laws in states where it conflicts with state law? | Yes, for example, in the case of federal drug crimes. |
| Can local police arrest people for violating federal immigration laws? | Yes, in some cases, such as when there is a written agreement with the U.S. Attorney General, during an emergency, or when enforcing specific criminal provisions of the Immigration and Nationality Act (INA). |
| Can local police detain people for violating federal immigration laws? | Yes, for a period not exceeding 48 hours (excluding weekends and federal holidays) until DHS assumes custody. |
| Can the federal government compel states to enforce federal laws? | Generally no, but it depends on the specific circumstances and the interpretation of the Tenth Amendment. |
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What You'll Learn
Local police can enforce federal immigration law
The involvement of local police in enforcing federal immigration law has been a topic of debate and controversy. While federal immigration law enforcement has traditionally been viewed as the exclusive responsibility of the federal government, there have been instances where local police have been involved in immigration enforcement.
In some jurisdictions, agreements have been signed between state and local law enforcement agencies and the federal government, allowing them to perform limited duties related to immigration law enforcement. This has sparked concerns among communities about proper training, finite resources, possible civil rights violations, and the impact on community relationships.
State and federal laws outline the duties of local police regarding immigration. For example, the Supreme Court ruled in 2012 that local police could inquire about immigration status and share that information with federal authorities, but their authority to enforce immigration law is limited. Texas' Senate Bill 4 also created penalties for officials who hinder immigration law enforcement by local police, including policies that prevent police from asking about immigration status.
Historically, the federal government has emphasized the need for cooperation with state and local law enforcement in immigration enforcement. The Carter Administration in 1978 and the Reagan Justice Department in 1983 both stressed the exclusive federal role in enforcing civil immigration law while highlighting the importance of joint federal-state operations. The 1983 statement clarified that state and local cooperation consisted of notifying and detaining suspected illegal aliens for federal authorities.
While civil immigration law enforcement has been seen as a federal responsibility, there is a distinction between civil and criminal violations. State and local officers may enforce the criminal provisions of immigration law if permitted by state law, but they are generally precluded from directly enforcing civil provisions. However, opinions on this matter have evolved, and there is a recognition that state enforcement of criminal immigration provisions aligns with the state's police power to make arrests for criminal acts.
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The federal government can require states to assist with enforcement
Secondly, the federal government can hold state and local officials accountable for any obstruction of criminal law enforcement or civil rights violations. Section 5 of the same document states that the Attorney General shall pursue legal action against state and local officials who willfully obstruct criminal law enforcement or engage in discriminatory practices.
Thirdly, the federal government can utilize Homeland Security Task Forces (HSTFs) and increase the provision of military and national security assets to assist state and local law enforcement, as mentioned in Sections 4 and 6 of the document.
Additionally, in certain cases, states have successfully enforced federal law, demonstrating their ability to assist with enforcement. For example, Texas and New York brought lawsuits against companies for violating federal consumer protection laws, as mentioned in the Harvard Journal on Legislation.
The federal government's ability to require states to assist with enforcement is a complex interplay between federal and state authorities, with the shared goal of maintaining law and order while protecting the rights of citizens.
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The Tenth Amendment limits federal power over states
The Tenth Amendment to the United States Constitution was passed by Congress on September 25, 1789, and ratified on December 15, 1791. The amendment reserves powers for the states, limiting the power of the federal government. It was proposed by the 1st United States Congress during its first term and was considered a prerequisite by many members before they would ratify the Constitution. The Tenth Amendment was intended to confirm that the federal government was a limited government with only the powers delegated to it by the Constitution. Any powers not explicitly granted to the federal government are reserved for state and local governments. This amendment upholds the principles of federalism, which refers to the division of power between the federal and state governments.
The Tenth Amendment has been invoked in several court cases to challenge federal power. For example, in United States v. Lopez (1995), a federal law creating a "gun-free zone" on and around public school campuses was struck down by the Supreme Court, which ruled that there was no clause in the Constitution authorizing the federal law. In Gonzales v. Raich (2005), a California woman sued the Drug Enforcement Administration after her medical cannabis crop was seized, despite medical cannabis being legal under California state law. The Supreme Court upheld the federal government's action, stating that growing one's own cannabis affects the interstate market.
The Tenth Amendment has also been used to argue for states' rights in areas like labour and environmental controls. However, it is important to note that the amendment does not grant states unlimited power. For instance, states cannot tax or control the operations of federal institutions. The Supreme Court has ruled that the Tenth Amendment prohibits the federal government from forcing states to pass or enforce certain legislation but does not prevent the federal government from acting beyond the powers delegated to it.
While the Tenth Amendment limits federal power over states, the enforcement of federal law by local police is a complex issue. Local law enforcement agencies generally enforce state and local laws, but in some cases, they may also enforce federal law. This can occur when there is a joint task force with federal agencies or when a federal crime is committed within their jurisdiction. Ultimately, the federal government decides which agency will enforce federal laws, and local police may find themselves enforcing federal law in certain situations.
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Local police can enforce federal criminal law
Local police officers can enforce federal criminal law and arrest individuals who break federal law. For example, in Gonzales v. City of Peoria, the Ninth Circuit Court of Appeals ruled that local police officers could enforce the criminal provisions of the INA (Immigration and Nationality Act). The defendants had argued that federal law prohibited this, but the court held that local police officers may constitutionally stop or detain people when there is a reasonable suspicion or probable cause that they have violated the INA.
In another case, People v. Barajas, the California Court of Appeal upheld the authority of California local police officers to make arrests for violations of two provisions of the INA.
However, it is important to note that the ability of local police to enforce federal criminal law may vary depending on the specific law and the state in which they are operating. For example, in Connecticut, state and local police are authorized to arrest people for violations of federal criminal law, but only if federal law explicitly or implicitly allows them to make an arrest for that specific crime.
The Department of Justice (DOJ) has also expressed conflicting views on whether state and local law enforcement agents can detain or arrest individuals for violating the civil provisions of federal immigration laws. In 1996, the DOJ stated that state and local law enforcement lacked the inherent authority to do so. However, in 2002, the DOJ withdrew this section of its policy memorandum, indicating that it had adopted a new policy. More recently, the DOJ concluded that state and local police do have the inherent authority to enforce the civil aspects of immigration law.
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Local police can enforce federal law in some states
Whether local police can enforce federal law depends on the state and the type of federal law in question. For example, in Connecticut, state and local police are authorized to arrest people for violations of federal criminal law. However, whether they can legally make an arrest for a specific federal crime depends on whether federal law explicitly or implicitly allows them to do so.
Federal immigration law explicitly authorizes state and local police officers to enforce its provisions under three circumstances. The first is when there is a written agreement between the U.S. attorney general and a state or municipality in which state or local officers are deputized as immigration officers under federal supervision. The second is when the U.S. attorney general declares an emergency due to an influx of aliens. The third circumstance concerns the enforcement of a specific criminal provision of the Immigration and Nationality Act (INA).
In Gonzales v. City of Peoria, the Ninth Circuit Court of Appeals held that local police officers may, subject to state law, constitutionally stop or detain people when there is reasonable suspicion or probable cause that they have violated or are violating the criminal provisions of the INA. Similarly, in United States v. Santana-Garcia, the Tenth Circuit considered the role of local law enforcement in immigration laws. In this case, a Utah police officer stopped a vehicle for a traffic violation and learned that the driver and passenger were not legally in the country. The court held that the officer had probable cause to arrest both defendants for suspected violation of federal immigration law and that state and local police officers have implicit authority within their respective jurisdictions to investigate and make arrests for violations of immigration law.
However, it is important to note that the Tenth Amendment to the United States Constitution reserves to the states all powers that are not granted to the federal government by the Constitution, except for those powers that states are constitutionally forbidden from exercising. As such, the federal government's ability to require states to assist in enforcing federal laws is limited. For example, in New York v. United States, the Supreme Court held that a provision of the Low-Level Radioactive Waste Policy Amendments Act, which required states to either regulate low-level radioactive waste according to congressional regulations or take ownership of the waste, was unconstitutional because it attempted to "compel the States to enact or administer a federal regulatory program."
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Frequently asked questions
The Tenth Amendment to the US Constitution, ratified in 1791, suggests that local police are not compelled to enforce federal laws. However, federal law does not preclude local enforcement of criminal provisions, and local police officers may arrest people for violations of federal criminal law.
Local, state, and federal prosecutors will decide on the level they try the case and what charges to press. For example, in a state where cannabis is legal, there are still limits on the amount a person can possess. If a drug dealer was caught with 30kg of cannabis, they would be charged by the state, and the federal DA might also get involved.
Federal immigration law explicitly authorizes state and local police officers to enforce provisions of immigration law under three circumstances. The first is a written agreement between the US attorney general and a municipality; the second is an emergency declared by the US attorney general due to an influx of aliens; and the third concerns the enforcement of a specific criminal provision of the Immigration and Nationality Act (INA).
