Honoring ICE Detainers and the ‘Non-Commandeering’ Canard

CBS News recently published a piece entitled, “ICE threatens lawsuits if Democratic states don’t hold migrants”. The gist is that the administration is threatening to go to court to force recalcitrant jurisdictions to honor immigration detainers when filed against alien criminals being held in state, county, or municipal jails. 

In common parlance, a detainer is a “hold” filed by one law enforcement organization to another, asking it to notify the requesting agency when the individual (in this case, an alien) is about to be released from custody so that the requester can be present to assume custody in a safe and lawful manner, rather than having to expend additional resources and risk public safety by having to find the individual back in the community post-release in order to rearrest him.

Detainers are routinely filed by one police agency with another by innumerable state and local organizations, and they are routinely honored. It only makes sense. Imagine the chaos and threat posed to communities throughout the U.S. if interagency cooperation were not the norm. With ICE, however, not so. 

In justifying this noncompliant course of action, sanctuary states and their political subdivisions frequently rely on the Tenth Amendment to the Constitution, which says simply,

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.

There is in fact a legitimate construction of the amendment to prohibit the federal government from commandeering state resources when against the state’s wishes, albeit within certain constraints that have been laid out in a long body of judicial decisions.

In the context of immigration detainers, various state and local governments that pursue sanctuary policies have chosen to adopt such a construction as justification for their noncompliance.

I believe the argument is fallacious on both substantive and actual practice grounds; that it is nothing more than a canard to excuse sanctuary policies which turn logic on its head. My reasoning is threefold and simple.

First, other than ICE, I know of no federal law enforcement agency whose detainers are declined; they are filed with frequency by the Marshals Service, FBI, and DEA, and uniformly honored. If state and local governments truly believed filing of federal detainers formed a kind of unlawful commandeering, would they not be consistent in their practices and refuse them all?

Second, exactly what resources are being “commandeered”? All ICE asks is that it be informed by a simple phone call, text, or email of the date and time the alien will be released, so that officers can be present to take custody from the holding agency. If this is commandeering, it is so de minimus as to be risible as a Tenth Amendment justification for refusing to cooperate.

Third, because immigration is a uniquely federal responsibility, it is essential that federal officers not be impeded in the performance of their official duties. Refusal to honor detainers that ICE files to take custody of criminal illegal aliens constitutes an egregious form of interference that serves no valid national or societal purpose. 

Surely any court impartially examining these factors would have to agree, although I recognize that many courts are neither impartial nor reasonable. I do hold out hope, though, that when presented to the Supreme Court in the fullness of time, they would agree that any rationale balancing test must end in a decision giving immigration authorities the ability to perform their constitutionally mandated responsibilities.

It is long past time that the federal government challenge states and localities for their refusal.