shutterstock_81188971Last year, in Arizona v. United States, the Supreme Court reaffirmed that the federal government, rather than the states, has both the responsibility and the authority to enforce immigration law.  Leaving immigration enforcement to the whims of individual state legislatures and law enforcement officers was, according to the Court, likely to undermine the federal framework and interfere with U.S. foreign relations.  Despite this resounding rejection of state immigration enforcement, or perhaps because of it,  the House Immigration Subcommittee passed  the Strengthen and Fortify Enforcement (SAFE) Act (H.R. 2278), which attempts to make an end run around the  Supreme Court’s decision by empowering states and localities to enforce immigration law as they see fit.  At the very time the country is pushing for a comprehensive federal overhaul of the immigration system, the presence of the SAFE Act threatens to cripple the success of those efforts.

Ironically, the SAFE Act emerged from Committee around the same time as three significant federal appeals court decisions that relied on the Arizona case to reject state or local immigration laws that openly discriminate against noncitizens.  The Third Circuit struck down ordinances in Hazleton, PA that attempted to prevent unauthorized immigrants from working or renting property.  The Fifth Circuit blocked a similar ordinance prohibiting rentals to unauthorized immigrants in Farmers Branch, TX.  And the Fourth Circuit rejected parts of a South Carolina law that essentially made unlawful presence in the United States a state crime.

Arizona emphasized that states cannot enact immigration laws at odds with the federal enforcement scheme.  Applying Arizona, both the Third and Fifth Circuits emphasized that the housing provisions under consideration would allow the cities of Hazleton and Farmers Branch “to achieve [their] own immigration policies” and could lead to “unnecessary harassment of some aliens … whom federal officials determine should not be removed.”  In addition, because the Supreme Court further clarified that unlawful presence is not a crime under federal law, the Fourth Circuit found that South Carolina, by “mak[ing] criminals out of aliens attempting to do no more than go to school, go to work, and care for their families,” had gone too far.

By contrast, the SAFE Act authorizes the states to play a significantly expanded role in immigration enforcement and would sanction criminal prosecutions at the state level for immigration violations.  If enacted, the SAFE Act would generate an inconsistent and unworkable patchwork of laws promulgated by states and localities, including those with a history of discriminatory practices.

In short, the SAFE Act would turn immigration enforcement on its head, allowing states and localities to determine who is in violation of immigration law and how they will be punished.  Given the discriminatory impact of laws such as those passed in Pennsylvania, Texas and South Carolina, authorizing further state authority would be going backwards rather than forwards. As the House struggles to find a solution for immigration that addresses the full spectrum of relevant issues, this approach would be counterproductive.

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