The absence of leadership from the Bush Administration and the enforcement-only approach taken by the U.S. House of Representatives have emboldened state and local legislators to attempt to enact immigration policies of their own.
Much of the legislation has been restrictive and overwhelmingly negative in scope. It has been opposed vigorously by the Mexican American Legal Defense and Educational Fund and other Latino immigrant rights, religious and labor organizations. As the U.S. Senate begins to take up comprehensive immigration reform, litigators and advocates need to pay close attention to state and local legislatures as well.
Under the U.S. Constitution, the setting of immigration policy belongs under the purview of the federal government. Typically, in cases that interpret the Constitution’s Supremacy Clause, the responsibilities to naturalize new citizens, enforce land and sea borders, and grant or deny admission to the United States are deemed to be federal functions.
On that basis, last summer MALDEF successfully helped challenge the actions of two New Hampshire local police chiefs who sought to apply state trespass laws against eight Latinos allegedly in the United States illegally and thus, according to the police, were in their towns without permission.
Had the Hudson and New Ipswich police in New Hampshire prevailed, sheriffs and police chiefs in cities and towns across the country – with no training or understanding of immigration categories or documentation – could have attempted unlawfully attempted to apply similar laws in their jurisdictions.
Local law enforcement of immigration laws by untrained officials can easily lead to racial profiling, with police demanding documentation from individuals they perceive as “looking foreign” regardless of their citizenship or immigration status. This has been the experience with employer sanctions, where, for almost the past two decades, many employers of Latino workers have made excessive requests of documents beyond what the law requires.
A more dangerous consequence of involving local law enforcement in immigration laws is the damage it does to police-community relations. For example, local law enforcement officials are hard pressed to educate and reassure domestic violence victims and their advocates that the same officer who responds to a call for help will not use his new immigration authority to pressure witnesses or family members to cooperate in an investigation.
Any jurisdiction that seeks to enforce immigration laws must take great pains to educate its community members on the legal scope of its authority. For the most part, local jurisdictions are left with both the responsibility to defend their actions and the liability to pay for them.
In the mid-1990s, when officials in Chandler, Ariz., conducted sweeps jointly with the then Immigration and Naturalization Service (INS), predictable turmoil followed in the local Latino community. The City of Chandler, not the federal government, had to pay $500,000 to community members whose civil rights were violated.
Another area where local ordinances interact with immigration laws is the prohibition of day laborers seeking employment by gathering around high traffic areas. In 2005, MALDEF obtained court orders blocking the implementation of ordinances in two Southern California communities. It continues to monitor day labor ordinances and fight unwise restrictive proposals.
More recently, the cities of Herndon, Va., and Burbank, Calif., have promoted privately run temporary labor centers that are safer for workers and reduce the potential for disturbances to neighboring homes or businesses.
In addition, the City of Los Angeles is contemplating what many consider to be model legislation that would require temporary worker centers to be co-located on the premises of very large home improvement stores. As long as small employers in the construction, home improvement and related industries seek out and hire temporary workers, the workers – not all of whom are here illegally – will gather to meet them. This workable approach allows local officials to advance safe and secure hiring without involving themselves in the federal act of setting immigration policy.
The Bush Administration and Congress must address our nation’s immigration problems with a comprehensive solution that includes necessary improvements in enforcement as well as legal channels for undocumented workers to adjust their status and continue contributing to local communities.
The patchwork of local measures is no substitute for federal action. Allowing local law enforcement officials to enforce federal immigration laws without training, resources or community education creates not only more problems, but dangers to the communities these local officers have sworn to protect.
(John Trasviña is Senior Vice President for Law & Policy at the Mexican American Legal Defense and Educational Fund. He may be contacted by e-mail at
(c) 2006 Hispanic Link News Service