The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (US Const. amend. X).

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (US Const. amend. X).

A recent Harvard–Harris Poll reports that 80% of respondents support the president's crack down on sanctuary cities.  This blog discusses the balance of power and state obligations to detain individuals for the federal government.

The Tenth Amendment to the U.S. constitution is part of the Bill of Rights that was intended to more narrowly define the balance of power between the federal government and the states.  The single sentence informs us the federal government has only those powers enumerated in the federal Constitution and no more.  The Supreme Court has interpreted the Tenth Amendment as prohibiting the federal government from "commandee[ring] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.[1]

Under the Tenth amendment, the states are probably not required to turn-over individuals arrested who are in the country unlawfully because the states have a Tenth amendment right to prosecute and incarcerate those who commit crimes within the state and there is no federal mandate to detain.  Each state has a right to establish and enforce laws protecting the welfare, safety, and health of the public.  This power is granted to the states under the tenth amendment as is referred to as the police powers of the states.  Turning over unlawful immigrants who have been arrested interferes with a state’s right to provide for the safety of the public because individuals turned over to ICE are likely to return to the community where they committed an alleged crime.

Generally, individuals being processed for deportation by the federal government can be detained in the United States for only six months when they are not incarcerated by conviction of a crime. [2] After six-months nearly all individuals, including those alleged to have committed crimes, must be released.  Even if individuals are successfully deported, a minimum of 46% of individuals convicted of felonies or misdemeanors who were previously deported return to the United States. (Center for Immigration Studies.)

States are not required to detain individuals in the United States unlawfully because there is no federal mandate and the federal government is not required to reimburse the states for the cost of detaining those individuals in the country unlawfully.  Under the Invasion Clause of the federal constitution,[3] the Tenth amendment, INA, 8 U.S.C. § 1103 (federal "duty to control and guard the boundaries and borders of the United States"), and 8 U.S.C. §1365 (authorizing the Attorney General to reimburse states for the cost of incarcerating unlawful immigrants convicted of state crimes.), states have attempted, without success, to get the federal government to pay for the cost of incarcerating unlawful immigrants.  The states have been unsuccessful because a state's obligation to incarcerate unlawful immigrants stems from its own laws, and not from any federal mandate.  Additionally, federal decisions relating to immigration control and reimbursement of costs to the states are discretionary matters.

In California, Judges often refuse to release an undocumented person before trial who has an ICE intervention on his or her record out of fear ICE will detain the person and remove the accused from the state’s jurisdiction before the state gets to prosecute.  Because many deported individuals return, the state as an argument it has a right to not turn over individuals who have committed crimes.  If the federal government desires the states the states to detain unlawful immigrants, the federal government must mandate and pay for that detention.  Even with a mandate and payment, the federal government cannot interfere with a state’s detention, prosecution, and incarceration of those individuals who violate state laws and must abide by the protections provided by the 4th amendment.

[1] Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., (1981) 452 U.S. 264, 288, 101 S. Ct. 2352, 2366, 69 L. Ed. 2d 1.

[2] Zadvydas v. Davis (2001) 533 U.S. 678

[3] "The United States ... shall protect each of [the states] against Invasion." (U.S. Const. art. IV, § 4)