WaPo Columnist Channels Fox's O'Reilly On TRUST Act, Mistakes And All

Blog ››› ››› SERGIO MUNOZ

Washington Post columnist Charles Lane recycled erroneous Fox News claims about California's new TRUST Act, which details how state officials can constitutionally participate in federal immigration policy.

On October 21, Lane provided misleading talking points to right-wing media on the topic of an appellate judge's recent admission that strict voter ID has proven to be voter suppression. A week later, the exchange was reversed, with Lane repeating debunked misinformation on the TRUST Act previously broadcast by Fox News host Bill O'Reilly.

In his most recent column, Lane falsely claimed that the TRUST Act was "in tension" with the Supreme Court's decision in Arizona v. United States, which reaffirmed long-standing Supremacy Clause precedent that forbids state law from conflicting with federal immigration law. Like O'Reilly's confused analysis before him, this is a conflation of the unconstitutional attempts of Arizona to usurp federal immigration powers with the separate - and unchallenged - constitutional justification behind the TRUST Act. From the October 29 edition of the Post:

California's new law limits cooperation with the federal Secure Communities program, under which the fingerprints of arrestees that local police routinely send to the FBI also get routed to U.S. Immigration and Customs Enforcement (ICE).

When ICE registers a "hit" against its database, it tells the state or local jail to hold the individual for up to 48 hours so that federal officials can pursue deportation if appropriate. Between March 2008 and September 2011, Secure Communities led to more than 142,000 deportations.


California's new law forbids police to detain anyone under Secure Communities unless the individual has been convicted of or formally charged with certain serious crimes such as murder or bribery -- but not, say, misdemeanor drunk driving.

It's the mirror image of a provision of Arizona's immigration law that essentially required Arizona police officers to check with ICE about everyone they arrested. The Obama administration opposed that as unwanted and unnecessary meddling in federal decision making -- but it was the only aspect of Arizona's crackdown that the Supreme Court upheld.

So: If the Supreme Court says that one state (Arizona) may pester federal immigration authorities with more information about detainees than they asked for, can another state (California) deny the feds information they might seek?

But the surviving provision in Arizona's troubled immigration law (SB 1070) mentioned by Lane involved communication between state and federal officials, whereas the TRUST Act delineates immigration detention powers. These are two entirely separate areas of enforcement underpinned by separate legal justifications.

Contrary to Lane's argument, that is not a "mirror image."

Indeed, the "mirror image" that Lane describes where California "denies the feds information they might seek" is not even an accurate description of the TRUST Act, which instead puts limits on what sort of voluntary detention state officials will engage in under the federal Secure Communities program. As explained by Marshall Fitz, director of immigration policy at the Center for American Progress:

This legislation draws a clear line for state and local cops regarding how far to go in collaborating with federal agents on immigration enforcement. Specifically, it prohibits local law enforcement from honoring detainer requests by DHS unless the individual has been convicted of a serious crime.


[A]s a legal matter, immigration detainers are simply voluntary requests that DHS issues to local law enforcement. California or any other state legitimately can and should decide whether to honor the request based on the state's own set of priorities. As former Secretary Napolitano has implicitly acknowledged, the TRUST Act does not frustrate the goals of the Secure Communities program. Instead, by restoring confidence in immigrant communities that it is safe to report crimes and interact with police, it helps advance that program's stated goal of improving community safety.

Although Lane does correctly mention that California is invoking a line of Supreme Court cases including Printz v. U.S. as the legal justification for the TRUST Act, he still repeats O'Reilly's incorrect inclusion of these cases in the Supremacy Clause doctrine that caused the federal preemption of SB 1070 and falsely compares the California legislation to Montana's attempts to nullify federal gun violence prevention law. In fact, Printz is part of the Supreme Court's separate "commandeering" doctrine, which holds that state officials cannot be forced by the federal government to carry out federal policy like immigration detention.

The TRUST Act affirms this constitutional line.

As indicated by former Department of Homeland Security (DHS) Janet Napolitano's support for the TRUST Act, the California legislation seeks to further the cooperative nature of Secure Communities and federal immigration law, not unconstitutionally conflict with it as SB 1070 did. Even with DHS' legal interpretation of the inability of states to "opt-out" of the voluntary database that relays fingerprints from the Federal Bureau of Investigation (FBI) to DHS, the department admits this is a narrow exception to the commandeering doctrine. Other than that possible exception for the "provision of information," forcing state officials to administer immigration detentions remains unconstitutional under Printz.

Ultimately, federalism can indeed make "strange bedfellows" in that state law is sometimes more progressive than the overall history of the states' rights movement. However, Lane can make this point without floating rhetorical questions that incorrectly explain the TRUST Act and the constitutional differences between it and SB 1070 in the same misleading fashion that right-wing media did previously.

Repeating O'Reilly's debunked talking points isn't going to help bridge the "deep divisions over who can and cannot stay in this country" that Lane laments.

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