Rep. Ed Royce (R-CA) has announced that he is planning to introduce a national version of Arizona’s immigration law, SB-1070. According to Royce, his legislation would give state-level cops and local law enforcement nationwide the authority to enforce federal immigration laws. In an interview with Fox News this morning, Royce laid out his plans:
FOX NEWS: Number one, you want to give local police — including state troopers at the state level — the authority to enforce immigration laws. Which is identical to Arizona, right?
ROYCE: It’s a force multiplier. We’re basically giving them the option, if you’re in local law enforcement to assist. […] We need a force multiplier for the border patrol. […]
FOX NEWS: Even with a Republican majority in the House can this pass, do you have enough support for this?
ROYCE: We have enough support for this in the House to pass this legislation, but then we’ll be up against the Senate. And in the Senate it’s going to depend upon how much pressure certain senators feel from the American public.
It’s worth noting that if the language of Royce’s bill mirrors his description of it, it’s still not exactly a duplication of Arizona’s law. SB-1070 doesn’t give police officers the option to enforce federal immigration laws, it requires them to.
However, Royce’s proposal is troubling for other reasons. In 1996 the Justice Department’s Office of Legal Counsel (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 for simply being illegally present in the country. However, in 2005, a controversial legal opinion issued by Jay S. Bybee of the OLC was released that 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. The 1996 decision — which some argue was actually written by SB-1070 architect Kris Kobach, who was employed by Bybee at the time — has been slammed on various accounts as based on a selective and misconstrued reading of case law.
Congress has the power to regulate immigration, so Royce’s bill could essentially make the OLC decision the law of the land. In arguing against Bybee’s memo, the Migration Policy Center cited several of the decision’s potential negative effects, including, “the potential damage to police-community relations; the diversion of resources from the prevention and punishment of crimes that may be of greater concern to the residents of particular cities and states; the potential for conscious or unconscious racial profiling; the costs to law enforcement of being compelled to release wrongfully arrested individuals; and the distraction of attention from security-related reforms of the INS at a time when that agency is facing radical restructuring.” Since a congressional action would carry even more weight, these effects would likely be amplified.
Ultimately, it’s extremely unlikely Royce’ bill will get past the Senate and even less likely that the current president will sign off on it. But it will continue to distract Congress from working on legislative solutions to the nation’s broken immigration system.