In his efforts to pretend a proposed state law enforcement bill in California was "extreme" and unconstitutional, Fox News host Bill O'Reilly accidentally explained why it was legal.
California is currently contemplating the TRUST Act, a new bill that would clearly delineate the responsibility of state enforcement officials when they participate in the federal Secure Communities program, a joint effort that processes immigration status information taken at the local level through national databases.
Even though O'Reilly correctly noted Secure Communities is a cooperative program between state and federal officials, he still erroneously insisted the TRUST Act "subvert[s] federal law" in an interview with the former head of Immigration and Customs Enforcement (ICE). From the September 25 edition of The O'Reilly Factor:
O'REILLY: Here is how extreme things are. A proposed new law in California would prevent -- prevent police from even cooperating with the federal government on illegal alien criminal cases. Democratic politicians in California obviously doing this to strengthen their base among immigrants from south of the border. Joining us now from Washington: Julie Myers Wood, former head of Immigration and Customs Enforcement. So obviously California is subverting federal law or am I wrong Ms. Wood?
O'REILLY: Shouldn't the attorney general though go in and say to California you can't do this. You can't not cooperate with federal people, ICE, when you have a criminal situation and if -- and we'll sue you if you continue this policy. Shouldn't the attorney general do that?
O'REILLY: But what are the odds of [Attorney General Eric] Holder doing that, you know the game in D.C. You know the players. What are the odds of the attorney general as you rightly pointed out did sue Arizona, same -- same issue. Your countermanding federal law, you can't do that. What are the odds of him saying the same thing to Jerry Brown and the people in California?
O'REILLY: All right. We're going to call the attorney general's office and see when the federal lawsuit will be filed against the state of California for failing to cooperate with federal officials.
But O'Reilly is flatly incorrect that the TRUST Act interacts with federal law in the same manner that the anti-immigrant Arizona law SB 1070 did.
The reason the Supreme Court struck down challenged provisions in SB 1070 was due to the fact that Arizona sought to replace federal immigration enforcement with its own - a clear violation of the Supremacy Clause. As explained by conservative Justice Anthony Kennedy, "[b]y authorizing state officers to decide whether an alien should be detained for being removable [a provision of SB 1070] violates the principle that the removal process is entrusted to the discretion of the Federal Government."
The TRUST Act, in contrast, does not illegally require state officers to perform federal duties, such as the detention and removal process. Rather, the TRUST Act does the opposite: it confirms that the federal government cannot force state officers "to decide whether an alien should be detained for being removable." There is no preemption problem like there was in SB 1070.
Indeed, the TRUST Act is essentially confirming the cooperative nature of Secure Communities - an inherent feature of the federal program that O'Reilly repeatedly acknowledged - by spelling out in what manner state officials will participate. Like Secure Communities, the TRUST Act cooperates with federal law, it doesn't conflict with it.
More importantly, despite the fact that by acknowledging the cooperation of Secure Communities O'Reilly himself explained why the TRUST Act does not "countermand federal law," the TRUST Act is clearly constitutional under the Supreme Court's "commandeering" jurisprudence. This is an entirely different constitutional doctrine separate from the Arizona v. United States case O'Reilly mistakenly thinks applies.
As explained by the California attorney general in a recent memorandum to state officials, it is black letter law that it would be in fact illegal for the U.S. Government to force state officials to carry out federal law enforcement. From a December 2012 "Information Bulletin" issued by the California Department of Justice to all state and local law enforcement agencies:
Several local law enforcement agencies appear to treat immigration detainers, sometimes called ICE holds, as mandatory orders. But immigration detainers are not compulsory. Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee. (See ICE Website, available at http://www.ice.gov/secure_communities ["Secure Communities imposes no new or additional requirements on state and local law enforcement"].) We reach this conclusion both because the I-247 form is couched in non-mandatory language and because the Tenth Amendment to the U.S. Constitution reserves power to the states to conduct their affairs without specific mandates from the federal government. Under the Secure Communities program, the federal government neither indemnifies nor reimburses local law enforcement agencies for complying with immigration detainers. (See 8 C.F.R. § 287.7(e).) Under principles of federalism, neither Congress nor the federal executive branch can require state officials to carry out federal programs at their own expense. If such detainers were mandatory, forced compliance would constitute the type of commandeering of state resources forbidden by the Tenth Amendment. (Printz v. United States (1997) 521 U.S. 898, 925 ["The Federal Government... may not compel the States to implement, by legislation or executive action, federal regulatory programs"]; New York v. United States (1992) 505 U.S. 144, 161 ["the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress's instructions"].)
O'Reilly may dislike the TRUST Act because of its appeal to Latinos, but his opposition to the bill on constitutional grounds is badly confused. Perhaps when O'Reilly gets around to calling Eric Holder, he'll realize his mistake.