The Trump Administration has issued a list of 118 cities and counties whom it says are creating “a clear and ongoing threat to public safety” by not bowing to federal demands that they detain illegal immigrants. No South Dakota jurisdictions appear on the list. In neighboring states, Sarpy (Papillion) and Hall (Grand Island) counties in Nebraska, Hennepin (Minneapolis) County in Minnesota, and 16 counties in Iowa make the Trump shame list.
Of course, since FBI Director James Comey confirmed to Congress yesterday that the Trump Administration makes stuff up, we can disregard that list and any other statement issued by the Trump Administration.
The list itself does not indicate widespread mutiny or secession. Many of the local governments listed aren’t issuing blanket refusals of all Immigrations and Customs Enforcement orders; rather, many are simply asking that ICE back their request with an arrest warrant, a court order, or other information to demonstrate that the feds aren’t acting arbitrarily or overstepping their authority. That’s the same kind of caution regular citizens exercise when law enforcement shows up on their doorstep. That caution is also supported by an Illinois federal district court ruling last October finding ICE detainers “exceed the government’s warrantless arrest authority.” ACLU Iowa cites more case law to show that ICE detainers are completely optional and that the feds can’t order local law enforcement around:
- Federal courts have confirmed that an ICE Detainer Request is completely optional. In one case, Galarza v. Szalczyk, the opinion states, “… 8 C.R.F. § 287.7 does not compel state or local LEAs to detain suspected aliens subject to removal pending release to immigration officials. Section 287.7 merely authorizes the issuance of detainers as requests to local LEAs.”) Two other federal cases saying the same thing are Maria Miranda-Olivares v. Clackamas County and Morales v. Chadbourne.
- The federal detainer regulation itself specifically and repeatedly provides that an ICE detainer is a request. The regulation, 8 C.F.R. § 287.7, provides: “The detainer is a request…” Although the word “shall” appears in one of the regulation’s subsection, that section addresses the maximum duration of the detention, not whether a local jail official must detain a person. The court opinion clearly states: “The words ‘shall maintain custody,’ in the context of the regulation as a whole, appear next to the use of the word ‘request’ throughout the regulation. . . . [I]t is hard to read the use of the word ‘shall’ in the timing section to change the nature of the entire regulation.”
- …In Printz v. United States and other cases, the Supreme Court has found that, under the Tenth Amendment to the U.S. Constitution, the federal government is not allowed to command state officers to do federal business.
- Current acting director of ICE, Dan Ragsdale, has also acknowledged that detainers are requests. In the past, both ICE Director John Morton and then-Assistant Director of Secure Communities David Venturella also have made the non-mandatory nature of ICE Detainer Requests clear in policy memos and other public documents [ACLU Iowa, “ICE Detainers Are Non-Mandatory, Optional Requests,” retrieved 2017.03.21].
Oh, that darned Constitution, always getting in the way of things the tyrant President wants to do.