Last month Idaho Rep. Greg Chaney, R-Caldwell, introduced a bill proposing to penalize sanctuary cities that shield immigrants from federal immigration law. But there are no sanctuary cities in Idaho. The bill also requires state law enforcement to assume duties related to federal immigration law. But Chaney believes that “it’s up to the federal government” to sort out the “who’s who” of immigration law violators. The Idaho bill may become the worst kind of law: one that no one needs.
Seven years ago, Arizona passed a similar law. The Department of Justice (DOJ) fought it, and the Supreme Court struck down three of the law’s four challenged provisions, emphasizing that immigration law is better left to one “national sovereign,” not “the 50 separate states.”
One aspect of Arizona’s law survived — the provision requiring arresting officers to “verify the [arrested] person’s immigration status with the Federal Government.” The Idaho bill similarly requires that if an individual is arrested and cannot prove lawful presence in the U.S., the agency “performing the booking process” must determine the individual’s immigration status by consulting with “United States immigration and customs enforcement,” or ICE.
In reviewing the Arizona law, the court cautioned that an immigration inquiry could not prolong someone’s arrest-related detention, and that if it did, the detention “would raise constitutional concerns.” The court found that the law contained sufficient safeguards to avoid prolonged detentions.
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I am concerned that the Idaho bill may encourage law enforcement officers to prolong a detention while they look up someone’s immigration status and that the law will be expensive to defend.
Missing from the Idaho bill are the protections that saved the Arizona provision. An individual could show an Arizona driver’s license to prove lawful presence in the U.S. There’s no such provision in the Idaho bill.
The Arizona law also barred officers from taking “race, color or national origin” into account when deciding whether to seek immigration status information, and the law had to be implemented in a way that protected all persons’ civil rights as well as U.S. citizens’ “privileges and immunities.” There are no discrimination warnings or civil rights reminders in the Idaho bill.
And despite the Arizona law’s safeguards, civil rights groups continued to challenge the immigration inquiry provision of the law until 2016. Arizona eventually paid $1.4 million in legal fees and costs.
The Arizona law was reviewed by the Supreme Court in 2012, after frustrated states had passed arguably xenophobic laws to protect their borders. Under the Obama administration, the federal response was swift and focused: Such laws would be challenged.
What would DOJ lawyers do today? The president has signed executive orders that require immigration determinations to be made on the basis of national origin. Lawyers who don’t agree are getting fired. If the Idaho bill becomes a law, and no federal lawyers fight it, will Chaney’s vision become the blueprint for other states to follow? These days, anything’s possible.
Katherine Macfarlane teaches constitutional law and civil rights litigation at the University of Idaho College of Law. All views are the author’s own.