The Tenth Amendment’s Check on Proposed Immigration Policy

Blog Post | 113 KY. L. J. ONLINE | November 12, 2024

The Tenth Amendment’s Check on Proposed Immigration Policy

By: Benjamin Scott, Staff Editor, Vol. 113 

Immigration has been one of the most controversial topics in the 2024 election season across party lines.[1] Both presidential candidates discussed plans to prevent the number of 11 million unauthorized noncitizens from growing,[2] but President-elect Donald Trump’s goal is to launch the largest deportation plan in United States history.[3] The magnitude of his program will require a massive increase in funding for federal agencies.[4] Additionally, Trump will have to build state relationships and look to local law enforcement if he hopes to have the numbers required to be successful.[5] “Our local police know everything about these criminals that have come into the country. . . . We’ll work with the local police and we have to get [the illegal aliens] out . . . .”[6] While the use of local law enforcement could potentially solve Trump’s foreseeable issues staffing enough Immigration and Customs Enforcement (“ICE”) agents needed to detain masses of undocumented people, the Tenth Amendment of the Constitution creates hurdles for the federal government when using state and local law enforcement through federal statute.

The Tenth Amendment’s purpose is to reserve all powers for state governments not explicitly delegated to the federal government by the Constitution.[7] The federal government has been permitted to exercise power regarding immigration matters[8] – the Immigration and Nationality Act (“INA”) was passed by Congress in 1956 and remains governing law[9] – but the Tenth Amendment protects state and local officials from being forced into conscription by federal statute.[10] In Printz v. United States, Congress passed the Brady Handgun Violence Prevention Act (“Brady Act”), which “direct[ed] state law enforcement officers to participate . . . in the administration of a federally enacted regulatory scheme.”[11] The dissent in Printz argued that the Brady Act can be distinguished from the Supreme Court’s ruling against the enforcement of federal regulatory schemes on states in New York v. United States, 505 U.S. 144, 144 (1992) because the Brady Act directs individuals, not the states themselves.[12] However, the Supreme Court found that the individuals in Printz were targeted specifically because of “their official capacities as state officers,”[13] making the Brady Act equally unconstitutional as the “take title” provisions debated in New York.[14] Thanks to the Court’s finding that the Tenth Amendment protects individuals from federal conscription, Trump is required to follow specific procedures to avoid constitutional violations like directing state and local law enforcement.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”).[15] IIRAIRA added subsection 287(g) to the INA, which permits ICE to establish a written agreement with any state or state political subdivision that will allow law enforcement officers or employees to perform certain functions of an immigration officer, such as the investigation, apprehension or detention of noncitizens.[16] These agreements are called Memoranda of Agreement (“MOAs”), and they protect the federal government from any Tenth Amendment violations.[17] However, like any contract, MOAs cannot be one-sided. INA §§ 287(g)(9-10) are explicit that no state, political subdivision, or officer will ever be required to enter a MOA.[18] That won’t be an issue for Trump in every state, but it could be in the majority of states. Currently, MOAs that grant immigration officer functions are in effect with 75 law enforcement agencies in only 11 states.[19] Additionally, there is another type of MOA that requires state and local law enforcement agencies to turn any removable immigrants over to ICE agents for processing instead of releasing them after serving jail time; 60 agencies in 16 states currently utilize the second type of MOA.[20] The majority of states, including Kentucky, have not agreed to either MOA with ICE. Furthermore, 41 jurisdictions have terminated MOAs with ICE as of 2024, and only four have been reinstated after being previously terminated.[21] Sanctuary policies, which oppose MOAs and prevent law enforcement officers from inquiring into immigration status, have been in effect since the 1970s.[22] Some of the largest cities in the United States, such as New York City and Los Angeles, impose sanctuary policies, and it seems unlikely that cities with histories of refusing to cooperate with ICE will suddenly change their views after Donald Trump’s reelection. Despite both presidential candidates’ support for more strict immigration policies, the ambition of Trump’s plan seems to discount the reality that not every state government and law enforcement agency will agree with his policies.

Trump has also threatened to strongarm any law enforcement agencies that refuse to cooperate by cutting off their access to Department of Justice grants.[23] A litany of debate and appeals transpired over this issue nearing the end of the President-elect’s first term when several states including Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Virginia and Washington filed suit against the federal government for attempting to link law enforcement grant money to compliance with federal immigration enforcement.[24] The 2nd U.S. Circuit Court of Appeals of New York ruled in favor of the Trump administration,[25] but the 7th U.S. Circuit Court of Appeals in Chicago disagreed, ruling in favor of sanctuary protections for undocumented immigrants.[26] The issue never reached the Supreme Court, but now that Trump has been reelected, it is likely to resurface, and with it a need for clarity from the country’s highest judicial power.

Donald Trump might be the most outspoken person in the country regarding immigration reform, but what his plan seemingly fails to recognize is that the success of his policy is heavily dependent on the cooperation of state and local law enforcement. With Tenth Amendment protections standing between Trump and his proposed mass deportations, he may be inclined to resort to withholding grant money, reigniting a circuit split and delaying immigration reform further. If his interest is to implement policies that improve the lives of United States citizens, he may have to compromise with states and localities that have historically aided noncitizens.

[1]  Francisco Tutella, Ask an Expert: Immigration and the 2024 Presidential Election, Penn State Univ. (Oct. 15, 2024), https://www.psu.edu/news/research/story/ask-expert-immigration-and-2024-presidential-election.

[2] Jeffrey S. Passel & Jens Manuel Krogstad, What We Know About Unauthorized Immigrants Living in the U.S., Pew Rsch. Ctr. (July 22, 2024),  https://www.pewresearch.org/short-reads/2024/07/22/what-we-know-about-unauthorized-immigrants-living-in-the-us/.

[3] Nicole Narea, Would Trump’s Mass Deportation Plan Actually Work?, Vox (Oct. 29, 2024, 6:45 AM), https://www.vox.com/politics/380582/mass-deportations-trump-history-alien-enemies.

[4] Mary Alice Parks, Donald Trump Wants a Mass Deportation Program. How Much Could it Cost?, Eyewitness News ABC 7 (Nov. 1, 2024, 7:58 AM), https://abc7ny.com/donald-trump-wants-mass-deportation-program-how-could-cost/15495837/.

[5] Amanda Hernández, Trump’s Mass Deportation Plan Could Rely on State Cooperation, Me. Morning Star (Nov. 2, 2024, 11:46 AM), https://mainemorningstar.com/2024/11/02/trumps-mass-deportation-plan-could-rely-on-state-cooperation/.

[6] Tim Boyum & David Mendez, Trump Seeks to Employ Local Police in Deportations, Promises Cops 'Immunity’ in Spectrum News Interview, Spectrum News N.Y. 1 (Aug. 13, 2024, 7:25 PM), https://ny1.com/nyc/all-boroughs/politics/2024/08/13/trump-interview-north-carolina-deportations.

[7] U.S. Const. amend. X.

[8] Freddie Wilkinson, The Federal Role in United States Immigration, Nat’l Geographic , https://education.nationalgeographic.org/resource/federal-role-immigration/ (last updated Oct. 1, 2024).

[9] How the United States Immigration System Works, Am. Immigr. Council (June 24, 2024), https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works.

[10] Printz v. United States, 521 U.S. 898, 935 (1997).

[11] Id. at 904.

[12] Id. at 930 (attempting to distinguish Printz from New York).

[13] Id.

[14] Id. at 931.

[15] H.R. Rep. No. 104-828, at 1 (1996) (Conf. Rep.).

[16] Immigration and Nationality Act of 1956 § 287, 8 U.S.C. § 1357.

[17] National Map of 287(g) Agreements, Immigrant Legal Res. Ctr. (June 15, 2023), https://www.ilrc.org/resources/national-map-287g-agreements.

[18] Immigration and Nationality Act § 287.

[19] Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigr. and Customs Enf’t , https://www.ice.gov/identify-and-arrest/287g (last updated Oct. 15, 2024).

[20] Id.

[21] See supra note 17.

[22] 10 of the Largest Sanctuary Cities in the United States, Fed’n for Am. Immigr. Reform, https://www.fairus.org/issue/10-largest-sanctuary-cities-united-states#:~:text=There%20are%20approximately%20600%20sanctuary,of%20the%20largest%20sanctuary%20cities (last visited Nov. 1, 2024).

[23] Julia Ainsley et al., Trump is Considering Halting Federal Grants to Police that Decline to Participate in Mass Deportations, NBC News (Oct. 30, 2024, 6:45 AM), https://www.nbcnews.com/politics/2024-election/trump-considering-halting-federal-grants-police-decline-conduct-mass-d-rcna177541.

[24] Josh Gerstein, Trump Scores Appeals Court Victory in Sanctuary Fight, Politico , https://www.politico.com/news/2020/02/26/appeals-court-trump-victory-sanctuary-117719 (last updated Feb. 26, 2020, 9:00 PM).

[25] Id.

[26] Ted Hesson, U.S. Appeals Court Rules Against Trump Attempt to Withhold Funds From ‘Sanctuary’ Cities, Reuters (Apr. 30, 2020, 11:07 PM), https://www.reuters.com/article/world/us-appeals-court-rules-against-trump-attempt-to-withhold-funds-from-sanctuary-idUSKBN22D495/.