Michael John Garcia
Legislative Attorney
Kate M. Manuel
Legislative Attorney
The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and in particular with Congress. Concomitant to its exclusive power to establish rules which determine which aliens may enter and which may stay in the country, the federal government also has the power to sanction activities that subvert this system. Congress has defined our nation’s immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of rules for legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties.
Congressional authority to prescribe rules on immigration does not necessarily imply exclusive authority to enforce those rules. In certain circumstances, Congress has expressly authorized states and localities to assist in enforcing federal immigration law. Moreover, there is a notion that has been articulated in some federal courts and by the executive branch that states may possess “inherent” authority to assist in the enforcement of federal immigration law, even in the absence of clear authorization by federal statute. Nonetheless, states may be precluded from taking actions that are otherwise within their authority if federal law would thereby be thwarted.
The ability of state and local police to make arrests for federal immigration violations is a subject of legal debate and conflicting jurisprudence. Traditionally, the prevailing view has been that state and local police are permitted, to the extent allowed under state and local law, to enforce the criminal provisions of the INA. By contrast, the enforcement of the civil provisions, including the apprehension of deportable aliens, was viewed as a federal responsibility, with state and local police playing, at most, a supporting role. This view may be changing, however, as the executive branch and some courts have concluded that, at least in some instances, state and local police are not preempted from arresting persons on the grounds that they are deportable, even in the absence of express authorization by federal statute.
This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws. It describes current provisions in federal law that permit state and local police to enforce immigration law directly, analyzes major cases concerning the ability of states and localities to assist in immigration enforcement, and briefly examines opinions on the issue by the Office of Legal Counsel (OLC) within the Department of Justice. This report does not discuss legal issues raised by states and localities enacting their own immigration-related laws, including measures intended to supplement federal law through the imposition of additional criminal or civil penalties. The legal implications of such measures are discussed in CRS Report R41221, State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070, by Kate M. Manuel, Michael John Garcia, and Larry M. Eig; and CRS Report RL34345, State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, by Jody Feder and Alison M. Smith.
Date of Report: September 17, 2010
Number of Pages: 23
Order Number: R41423
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Legislative Attorney
Kate M. Manuel
Legislative Attorney
The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and in particular with Congress. Concomitant to its exclusive power to establish rules which determine which aliens may enter and which may stay in the country, the federal government also has the power to sanction activities that subvert this system. Congress has defined our nation’s immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of rules for legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties.
Congressional authority to prescribe rules on immigration does not necessarily imply exclusive authority to enforce those rules. In certain circumstances, Congress has expressly authorized states and localities to assist in enforcing federal immigration law. Moreover, there is a notion that has been articulated in some federal courts and by the executive branch that states may possess “inherent” authority to assist in the enforcement of federal immigration law, even in the absence of clear authorization by federal statute. Nonetheless, states may be precluded from taking actions that are otherwise within their authority if federal law would thereby be thwarted.
The ability of state and local police to make arrests for federal immigration violations is a subject of legal debate and conflicting jurisprudence. Traditionally, the prevailing view has been that state and local police are permitted, to the extent allowed under state and local law, to enforce the criminal provisions of the INA. By contrast, the enforcement of the civil provisions, including the apprehension of deportable aliens, was viewed as a federal responsibility, with state and local police playing, at most, a supporting role. This view may be changing, however, as the executive branch and some courts have concluded that, at least in some instances, state and local police are not preempted from arresting persons on the grounds that they are deportable, even in the absence of express authorization by federal statute.
This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws. It describes current provisions in federal law that permit state and local police to enforce immigration law directly, analyzes major cases concerning the ability of states and localities to assist in immigration enforcement, and briefly examines opinions on the issue by the Office of Legal Counsel (OLC) within the Department of Justice. This report does not discuss legal issues raised by states and localities enacting their own immigration-related laws, including measures intended to supplement federal law through the imposition of additional criminal or civil penalties. The legal implications of such measures are discussed in CRS Report R41221, State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070, by Kate M. Manuel, Michael John Garcia, and Larry M. Eig; and CRS Report RL34345, State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, by Jody Feder and Alison M. Smith.
Date of Report: September 17, 2010
Number of Pages: 23
Order Number: R41423
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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