Want to challenge Trump on immigration? Try a strategy from the antebellum South By Anna O. Law

ImmigrationWant to challenge Trump on immigration? Try a strategy from the antebellum South By Anna O. Law

By Anna O. Law

Published 9 January 2017

Immigrant communities and their advocates are gearing up to challenge President-elect Donald Trump’s proposals for immigration policy. The U.S. federal system structure of government may be their best defense. Trump has said he will deport two to three million immigrants with criminal records. To find, apprehend, legally process, incarcerate, and return that many people to their home countries would require the cooperation of local law enforcement. Only 5,700 immigration enforcement agents work the entire geographical U.S. Although states and localities cannot evade enforcement of federal laws, they can refuse to cooperate with federal authorities in carrying out mass deportation.

Immigrant communities and their advocates are gearing up to challenge President-elect Donald Trump’s proposals for immigration policy.

The U.S. federal system structure of government may be their best defense.

Trump has said he will deport two to three million immigrants with criminal records. To find, apprehend, legally process, incarcerate, and return that many people to their home countries would require the cooperation of local law enforcement. Only 5,700 immigration enforcement agents work the entire geographical U.S. By contrast, there are more than 20,000 border patrol agents policing a jurisdiction that is limited to 100 miles of the border.

Although states and localities cannot evade enforcement of federal laws, they can refuse to cooperate with federal authorities in carrying out mass deportation. The underlying premise is that the U.S. Constitution mandates power be divided between the national government and state and local governments. States would have constitutional grounds for resisting – the same grounds that allowed southern states to argue in favor of preserving slavery.

My research on the historical overlap between slavery and immigration policies shows how the federal system is a double-edged sword that can produce both liberal and conservative policy outcomes.

The possibilities of a federal system
Pro-immigrant forces are turning to the federal structure to resist Trump’s restrictive immigration proposals. Immediately after the election, mayors and other local officials across major U.S. cities vowed that their cities would remain “sanctuaries” for immigrants.

As several law professors recently wrote, states and localities can argue that local law enforcement’s work would be compromised if they were dragooned into helping carry out federal immigration laws. Forcing state police to enforce federal immigration laws could make communities less safe, the argument goes, if residents feel compelled to hide from or refuse to cooperate with police because of their immigration status.

As for Trump’s threats to withhold funding from cities failing to enforce immigration laws, the legal doctrine on his side is speculative at best. The law he thinks he has on his side is not clear about how and how much federal funding can be withheld to states and localities that don’t toe the line on federal policy.

The framers’ hopes
The framers of the U.S. Constitution believed that to safeguard individual liberty against government tyranny, government power and authority should be divided to create checks and balances. In addition to three branches of government sharing power, the Constitution also splits authority

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