The Immigration Reform Law Institute (IRLI) has filed an important friend-of-the-court brief in Philadelphia v. Sessions, the first federal appeals court case to test a new open-borders legal theory that has been rearing its head in selected federal district courts across the country. The theory is that a key law passed by Congress requiring state and local governments not to interfere in federal immigration enforcement is unconstitutional – a violation of the Tenth Amendment, which says that states retain those powers not given to the federal government in the Constitution.
This supposed states’ right to interfere has been proclaimed by federal district courts in California, Chicago, and Philadelphia. These courts have all found that 8 U.S.C. § 1373, which forbids states and localities from telling their law enforcement officers not to share immigration-related information about persons in custody with federal authorities, unconstitutionally “commandeers” the states by telling them what laws they may have. So, according to the district court in this case, a key Philadelphia sanctuary policy – the one ordering city police to refuse to give Immigration and Customs Enforcement (ICE) the release dates of alien criminals in Philadelphia jails – is actually protected under the Constitution.
In response, IRLI argues in its brief that keeping federal officials in the dark about alien criminals’ release dates is rank interference with federal enforcement – for it thwarts ICE’s policy of detaining criminal aliens in the controlled environment of a local jail. Without release dates, ICE doesn’t know when to show up, and by law it may not detain aliens before their criminal sentences have been served. Indeed, without release dates, ICE often cannot determine whether a given alien is still in a given jail or not. For this reason, IRLI points out, refusing to share release dates with ICE constitutes “shielding” illegal aliens from detection, a crime under the federal anti-harboring statute.
“Obviously, sanctuary policies that violate federal criminal law are not protected in the Tenth Amendment – at least not if the federal criminal law is constitutional, and no one has ever said the anti-harboring statute is unconstitutional,” explained Christopher Hajec, IRLI’s director of litigation. “States and cities have no right to interfere in federal efforts to enforce federal law – certainly not by committing crimes themselves.”
“The supposed right to interfere with immigration enforcement is an open-borders fantasy, recently sprung to new life by this spate of activist district-court decisions, quoting each other approvingly in ruling that § 1373 is unconstitutional,” commented Dale. L. Wilcox, IRLI’s executive director and general counsel.
“If this latest gambit of open-borders activists survives appeal in any of the federal circuit courts now considering it, the issue ultimately will be decided by the Supreme Court. Going forward, we will work to ensure that these higher federal courts, including the Supreme Court if necessary, continue to maintain the true federal-state balance – the one set forth in the Constitution – under which dangerous sanctuary policies like Philadelphia’s are a travesty.”
The case is Philadelphia v. Sessions, No. 18-2648 (3d Cir.).
Brian Lonergan writes for the Immigration Reform Law Institute.