THE EXECUTIVE AUTHORITY OF THE PRESIDENT—PART ONE—THE IMMIGRATION WARS
INTRODUCTION
In Part One of this two-part “Into the Weeds” series, the fundamentals of the role of the Executive Branch and its vast and nearly exclusive authority and power over the subject of immigration and the status of aliens will be examined. An understanding of this role is meant for the reader to create context when weighing the pushback of so-called “sanctuary” cities and states and the boundaries of Federalism. What lines may and may not be crossed by local and state officials who seek to protect those who have no legal standing to be present in this country and the difficult political road that lies ahead for our Executive Branch to make sure that the Article II mandate that the laws be faithfully executed is in fact carried out. Article II of the Constitution vests the entire “executive Power” in the President alone, hence the originalist designation “Unitary Executive.” The Constitution does presume that lesser executive officers will assist the President in discharging these duties. Foremost among these duties is the enforcement and consideration of the status of aliens and the discharge of duties outlined in significant Congressional enactments which regulate such status. The federal government derives this broad authority, in part, from the constitutional power to “establish a uniform Rule of Naturalization” at Article I Section 8, Clause 4. The Supremacy Clause further mandates that federal law “shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI Section 2. Therefore, although significant police powers and other powers are reserved to the states under principles of Federalism and the Tenth Amendment, state laws and practices which conflict with the clear authority, yes, exclusive authority, of the federal executive in this distinct area will be struck down by the courts. We will see in coming months this battle as the left seems determined to ignore well-settled law and rest their political fortunes on protecting lawlessness. The system isn’t “broken”; laxity of enforcement by the Biden Administration in clear violation of law made it so. It is up to the current Administration to clean up this mess and run a politically nasty gauntlet to keep us safe, protect the public from fiscal waste, and finally do what the law commands.
ALEXANDER HAMILTON ENVISIONED THE TYPE OF EXECUTIVE THAT AMERICANS ELECTED TO THE PRESIDENCY IN 2024
In THE FEDERALIST 70, Hamilton said the following when envisioning the ideal chief Executive:
“…Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws, to the protection of property against those high-handed and irregular combinations which sometimes interrupt the ordinary course of justice, and to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy….”
Hamilton and the Framers could never have foreseen the lawless invasion of aliens into this country with a weak, ambitious, and anarchic Biden ignoring the law in favor of a political goal of creating a constituency of the grateful, gaming the census, and turning a blind eye to the assault on the law-abiding by cartels and their trafficked fodder. How prescient his words were and fit in this era as if written last week. Trump has succeeded in getting the Senate to approve a Homeland Security official in Kristi Noem. Tom Homan, a seasoned border cop, is his Border Czar, and most of us aspire to see the very protections that Hamilton envisioned the Executive to be responsible for.
MAKE NO MISTAKE, BOTH CONGRESS AND THE CONSTITUTION PROVIDE ALL OF THE AUTHORITY NECESSARY FOR THE EXECUTIVE TO UNDERTAKE AGGRESSIVE DEPORTATIONS AND BORDER ENFORCEMENT
In 2010 the state of Arizona had had enough. The legislature was in the political posture so as to enact a slate of laws that included empowering state law enforcement officials to directly enforce federal immigration law. The aim was to target, even back then, the vast influx of illegals into Arizona and Obama’s uneven enforcement of immigration law. The Court noted the extreme strain that such influx caused in the areas of public safety and in the public costs. Also, in many instances, state law enforcement officials will encounter illegals with greater frequency than ICE agents. In the spirit of cooperation, and in connection with a stop, detention, or arrest of a suspected alien for a state violation permitted under the new laws, it would permit state law enforcement officials to ascertain the immigration status of such person. These laws were challenged by the Obama Administration as preempted by federal law. Although most of the proposed slate of laws were held to be unenforceable due to the Supremacy Clause, the framework for an atmosphere of future cooperation between federal and state authorities was set forth by the United States Supreme Court in Arizona v. United States, 567 U.S.387 (2012). The Court noted:
“Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted into the United States. Unlawful entry and unlawful reentry are federal offenses. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. Failure to do so is a federal misdemeanor. Federal law also authorizes States to deny noncitizens a range of public benefits, and it imposes sanctions on employers who hire unauthorized workers.”
The Court further defined the range of Federal authority:
“…Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter, and a principal feature of the removal system is the broad discretion exercised by immigration officials…”
Importantly, the Court noted;
“…Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or training needs to be in place for state officers to communicate with the Federal Government regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States… Congress has done nothing to suggest it is inappropriate to communicate with ICE and has encouraged the sharing of information about possible immigration violations….”
It is therefore the public policy of the United States to have a spirit of cooperation between the federal and state law enforcement apparatus when it comes to immigration enforcement. So-called “sanctuary” jurisdictions have thwarted these aims by creating the fiction that illegals are afraid to report crimes as they may be removed and that noncooperation with ICE by not reporting arrests and detentions of suspected removable aliens somehow increases the safety of their communities. Ridiculous, as criminal aliens prey on their communities, and in fact, ICE activity in many of these hard-hit areas has been cheered. In addition, in places like Chicago, there is an open defiance of clear federal authority as pure naked politics. The Governor of the State, JB Pritzker, has publicly defied ICE and stated that it will be the policy of Illinois and its law enforcement apparatus to not cooperate with removal and deportation initiatives that are perfectly lawful. This makes enforcement in the urban areas where criminal aliens are ensconced highly dangerous for well-intentioned federal officials executing a mandate to enforce federal law. This can easily devolve into outright obstruction of federal officials, and Border Czar Homan has made no secret of the fact that no state official at any level is above prosecution if such takes place. As a starting point, newly appointed Attorney General Pam Bondi has instituted litigation against Chicago and Cook County, claiming that Chicago’s Welcoming City Ordinance and the Illinois Trust Act are an intentional effort to engage in such obstruction and to prevent the federal government from its well-settled exclusive mandate to enforce immigration law. The effect is to shield people whom the federal government has the absolute right and mandate to remove and classify from any such enforcement through a policy of obstruction. I suspect Illinois will lose.
VIRGINIA HAS A POLICY OF COOPERATION THAT HAS BEEN UPHELD BY AT LEAST ONE FEDERAL COURT
It appears that the General Assembly has embodied in our Code a requirement for all local and state law enforcement to inquire as to the immigration status of any person booked into a facility for the commission of a felony, and upon determination that such person is indeed not a citizen, that inquiry shall be made to ICE to determine that status of that person. Code of Virginia Section 53.1-218. In Virginia, as well as many other states or commonwealths, elected sheriffs who operate such facilities have declared that they will cooperate with ICE in a process known as the detainer process. The majority of Virginia sheriffs will safely deliver to ICE persons in their jails who have served state penalties and are subject to removal. This is the environment for the safety of federal officers that Border Czar Homan sees as ideal and what the “sanctuary “city scofflaws are denying him and his officers. In 2019, a Virginia sheriff had this process tested in a federal court, and it was determined that he had immunity for honoring an ICE detainer. In Rios v. Jenkins, 390 F. Supp. 3rd 714, a District Judge in the Western District of Virginia considered a case that is typical of what we should see throughout the country. After an arrest for a state-level offense and ICE is notified that such person is in state custody, federal law enforcement requests the cooperation of the state jurisdiction by issuing a Form I-247 detainer. This is issued by a trained ICE official who states under oath that such person is removable and that the jurisdiction is requested to hold such person for up to 48 hours after such time as the state sentence is served, or bond is granted, so that ICE may take custody of the person for further proceedings. Sanctuary jurisdictions ignore these or imply fail to notify ICE that an illegal alien has been arrested. That is how we see Laken Riley-type tragedies. The use of such warrants is authorized by federal law, and the effective implementation of the process requires cooperation by state officials. The person was held, and the inmate sued, stating that he should have been released and that the Form I-247 was not a judicial warrant issued by a magistrate and that therefore he was held in violation of the Fourth Amendment because true probable cause was not established. The Court held that the request from federal officials, duly delivered prior to release, was proper and that the public policy of cooperation set forth in Arizona v. United States created a good faith belief on the part of the Sheriff that his holding of the individual for the public good was proper.
This is a roadmap for what will and must happen in this country. Many Sheriffs, even some in so-called sanctuary jurisdictions, have declared that their independent status confers upon them the discretion to cooperate with ICE and safely deliver removable criminal aliens into ICE custody. This is the result that advances public safety.
CONCLUSION
The notion that failure to cooperate with ICE by a local jurisdiction somehow advances the safety of communities is pure nonsense. In actual practice, it simply creates an environment wherein federal law enforcement agents are blocked from performing a vital task which Congress has directed and which the Executive must perform. The public safety is frustrated, and communities are preyed upon, not protected. The Trump Homeland Security apparatus is committed to the collective safety of the public and the protection of the Treasury. Although border crossings are down to near zero, the interior has suffered from a failure to enforce the laws, and the task is enormous. The vast majority of the public demands such enforcement, and a combination of fiscal pressure and the intervention of the courts will finally lead to effective implementation of federal law designed to displace inconsistent state law. It will be done.
Mike Imprevento
February 10, 2025
