Yesterday, the American Civil Liberties Union (ACLU) and others filed a class action lawsuit in the U.S. District Court for the District of Arizona challenging the state’s new immigration law, SB-1070. However, the Washington Post pointed out today that a controversial legal opinion issued by Jay S. Bybee of the Justice Department’s Office of Legal Counsel (OLC) may complicate the legal battle against the nation’s harshest immigration law which partially rests on the assumption that it interferes with federal law. However, just as President Obama issued an Executive Order rescinding Bybee’s previous OLC guidance permitting the use of torture and directed that no government agency may rely on any of OLC opinions on that topic between 2001 and 2009, Obama can and should similarly exercise his authority to nullify Bybee’s radical “inherent authority” immigration memo.
In 1996 (and also in 1989), the OLC determined that, under the Immigration and Nationality Act (INA), local police officers can only enforce the Act’s criminal provisions (entering the country illegally) and do not have the authority to arrest immigrants “on the basis of civil deportability” (being illegally present in the country). In other words, police can’t go after someone for simply overstaying a visa. However, Bybee deemed the OLC’s 1996 opinion “mistaken.” “We further assume that States have conferred on state police the necessary state-law authority to to make arrest for violation of the federal immigration laws,” wrote Bybee.
When the memo was released in 2005, the ACLU slammed Bybee’s opinion on three accounts. According to the ACLU, Bybee:
- Selectively read case law in order to conclude that the federal government has not preempted local authority to enforce complicated, multi-layered immigration law;
- Misconstrued decisions in cases where police assisted in criminal enforcement to extend them authority to enforce civil laws as well; and
- Repeatedly ignores instances in which Congress authorized police to assist in immigration enforcement under specific situations, even when the Congressional Record reflects the fact that lawmakers intended such provisions to grant new authority that police did not already possess.
The Migration Policy Institute (MPI) concurred in their own assessment of “inherent authority.” MPI cites DeCanas v. Bica, which affirmed that “the power to regulate immigration is unquestionably exclusively a federal power.” While Bybee held that Gonzales v. City of Peoria established that the “general rule is that local police are not precluded from enforcing federal statutes,” MPI doesn’t think the decision itself confers “inherent authority.” Quite the contrary, the decision explicitly stated that though “state law authorizes Peoria police to enforce the criminal provisions” of the INA, “this authorization is limited to criminal violations.” More specifically, the Court stated that officers “must distinguish illegal entry from illegal presence and must comply with all arrest requirements imposed by the federal Constitution.” MPI further notes that the INA was substantially amended in 1996 to include new provisions relating to state and local involvement in immigration enforcement. If Congress did believe states have inherent authority, the new INA provisions would have been meaningless. And even if Congress intended to alter INA’s interpretation of inherent authority, it probably would’ve just expressly stated so.
On a practical level, many police officers themselves have rejected Arizona’s deputization of immigration law on the basis that it will make Arizona less safe by forcing police to prioritize immigration enforcement over violent crimes, draining strained financial and manpower resources, exacerbating civil rights violations, and fueling costly lawsuits. Kobach, meanwhile, might want to be careful about citing the authority of someone who has been described as “unfit for a job that requires legal judgment and a respect for the Constitution” when trying to convince the American people of the validity of his own murky legal reasoning.