The Faulty Arguments Behind Immigration Detainers

American Immigration Council, Immigration Policy Center, "Perspectives" Series, 2013

U Denver Legal Studies Research Paper No. 14-34

14 Pages Posted: 2 May 2014 Last revised: 27 Jul 2014

See all articles by Christopher N. Lasch

Christopher N. Lasch

University of Denver Sturm College of Law

Date Written: December 18, 2013

Abstract

In Arizona v. United States, the Supreme Court made clear that states may not enforce civil immigration law unless explicitly authorized by Congress. But while generally providing a ringing endorsement of federal power, Arizona also limits the power of the federal executive to pursue immigration enforcement objectives. The executive branch, like the states, has an obligation to implement "the system Congress created" and none other. The Arizona opinion leaves little doubt that immigration detainers do not comport with the system Congress created.

Detainers also raise substantial constitutional questions, including the Fourth Amendment issue raised by prolonged detention — the precise concern raised by the justices concerning implementation of Section 2(B) of SB 1070. It is clear that such detention must comply with the Fourth Amendment; it must be supported by probable cause and meet the independent requirement of prompt neutral review. Federal immigration detainers cannot support prolonged detention. Those jurisdictions that have resisted immigration detainers have done so with sound legal justification. But some of these jurisdictions simultaneously assert a power to selectively comply with detainers. Given the legal problems attendant to the use of detainers, jurisdictions wanting to honor immigration detainers in some cases must do more than focus on the seriousness of the offense of which arrestees are accused. At a minimum, they must be sure that honoring a detainer in a particular case complies not only with "the system Congress created" for immigration enforcement, but also with state and federal constitutional requirements. By honoring immigration detainers that do not meet these threshold legal requirements, local officials and localities risk civil liability.

Keywords: immigration, detainers, tenth amendment, civil rights

Suggested Citation

Lasch, Christopher N., The Faulty Arguments Behind Immigration Detainers (December 18, 2013). American Immigration Council, Immigration Policy Center, "Perspectives" Series, 2013, U Denver Legal Studies Research Paper No. 14-34, Available at SSRN: https://ssrn.com/abstract=2432011 or http://dx.doi.org/10.2139/ssrn.2432011

Christopher N. Lasch (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6368 (Phone)

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