A constitutional wall will block President-elect Donald Trump’s mean-spirited ambition to swiftly deport up to 3 million undocumented immigrants.
The U.S. Constitution protects states or localities from commandeering by the federal government to enforce federal statutes, including immigration laws. That doctrine was expounded by Justice Antonin Scalia in Printz v. United States (1997), holding that state or local law enforcement officials could not be compelled to enforce background checks or other provisions of the Brady Handgun Violence Prevention Act. Conservatives celebrated.
The Constitution also prohibits the federal government from circumventing the anti-commandeering doctrine of Printz by coercing state or local governments to enforce federal law on pain of losing substantial federal funding for unrelated programs or policies. That doctrine was expounded by Chief Justice John Roberts in National Federation of Independent Business v. Sebelius (2012). There, the court held that the Affordable Care Act unconstitutionally sought to coerce states to expand eligibility for the federal-state Medicaid program by threatening a loss of all federal matching funds for failing to do so. The federal government cannot use bait-and-switch tactics to allure state or local governments into a cooperative spending program, and later materially alter the terms for continued receipt of federal funds. A material alteration would include a requirement that they waive their anti-commandeering protection against enforcement of the federal immigration laws.
Several major localities have anti-commandeering immigration policies protected by Printz, including Los Angeles, Chicago, New York, Boston, Philadelphia and San Francisco. Nationwide, the number exceeds 500. Among other things, these jurisdictions balk at complying with federal requests to hold undocumented immigrants for detention, and to transfer them to Immigration and Customs Enforcement (ICE) for deportation. The dominant reason is to encourage the cooperation of the undocumented in detecting and prosecuting state or local crimes without fear of inviting deportation.
California alone houses 2.3 million of the estimated 11 million undocumented residing in the United States.
Without the collaboration of state or local law enforcement, deporting 3 million immigrants within a short period by ICE officials alone is a pipedream. In 2015, the Obama administration “deported” approximately 235,000 undocumented immigrants. But the lion’s share occurred at the border. A mere 70,000 were effectuated with interior apprehensions. These deportations were accomplished with 20,000 ICE employees.
To deport 3 million from the interior in a year as President-elect Trump has pledged would require multiplying the current number of interior deportations by a staggering 228, rocketing the number of ICE employees from 20,000 to 456,000, and similarly jumping the number of immigration judges from 242 to more than 55,000—a number that dwarfs the total number of all federal judges at all levels throughout the nation. The ICE budget would escalate from $6 billion to approximately $1.4 trillion.
This is not, however, the whole story. Trump defenders correctly note that President Obama sharply curtailed the number of annual interior deportations. It fell from 245,000 in the last year of the Bush administration to 70, 000 on Obama’s watch, or 3.5 times lower. Thus, President Trump could probably return to the Bush level of without any increase in current manpower or budget. But to climb interior deportations to 3 million would still mean multiplying the number of ICE employees and immigration judges and the ICE budget by a factor of 63, still prohibitive increases.
Depend upon it. Trump supporters will not protest the inevitable puncture of his deportation fancies. The placebo effect is as prominent in politics as in medicine. People feel better if they imagine something is being done to address a problem even if it remains undiminished. That has been a feature of the human narrative for thousands of years.
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