Wed Jul 25, 2012 by Anil Kalhan
Rahmmigration, Romneygration, and Federalism (Dorf on Law)
(Posted at Dorf on Law)
Last week, Chicago Mayor (and former Obama White House Chief of Staff) Rahm Emanuel reentered the national political fray, advising Mitt Romney that he should “stop whining” about the attention being given to his record at the helm — or was it “retroactively” not at the helm? I can’t keep track any more — of Bain Capital. Emanuel did not add, but might have, that it was not, after all, as if anyone had sent Romney a dead fish.
That same week, however, Emanuel made an even more consequential, if less widely noted splash with his announcement of the proposed “Welcoming City Ordinance,” which (it has been reported) he may formally introduce at the City Council meeting scheduled for later this morning. The ordinance would clarify and extend existing policies restricting the circumstances under which Chicago police officers may inquire about immigration status during encounters with members of the public:
The ordinance builds on an existing ordinance and longtime City policy that prohibits agencies from inquiring about the immigration status of people seeking City services, and provides that the Chicago Police Department will not question crime victims, witnesses and other law-abiding residents about their legal status. It will now be expanded to ensure that undocumented Chicagoans will only be detained if they are wanted on a criminal warrant by local or federal authorities, if they have been convicted of a serious crime and remain in the United States illegally, or if they are otherwise a clear threat to public safety or national security.
The ordinance provides for CPD training in conjunction with immigrant advocacy groups to build trust within immigrant communities; and the development of public marketing materials that outline the services that law abiding immigrants can safely access in the city of Chicago. CPD will continue to cooperate with federal authorities in investigating and apprehending violent criminals who may be undocumented immigrants. [link]
The proposed ordinance is the latest in a slew of initiatives designed — as Emanuel has repeatedly put it since taking office — to make Chicago the “most immigrant-friendly city” not just in the United States, but “in the world.” (Emanuel discussed his overall vision for immigration in Chicago during an interview with Univision last summer.) In his inauguration address, Emanuel endorsed the Illinois version of the DREAM Act, which was adopted into law later that summer. Soon after taking office, Emanuel also established a new Mayor’s Office for New Americans, an immigrant integration initiative intended to facilitate immigrants’ access to city services and programs by (among other things) improving language access, enhancing opportunities for immigrant small businesses, and increasing the involvement of immigrant parents in Chicago’s schools.
Now, if you had been asked to predict an Obama administration official likely to become a strong champion for immigrant-friendly policies, Emanuel probably would not have been your first choice. While serving in the congressional leadership and the Obama White House, he repeatedly clashed with immigrants’ rights and immigration reform advocates for urging caution on moving forward with comprehensive immigration reform, which he openly characterized as the “third rail of politics.” In fairness, Emanuel’s record on immigration while in Washington was always more nuanced than some critics were prepared to acknowledge. Still, by the time of the 2011 mayoral race, Emanuel had sufficiently disheartened immigrants’ rights advocates with his “terrible” record on immigration to make immigration a significant campaign issue – prompting Representative Luis Gutierrez, a fellow Chicagoan and leading immigration reform advocate in Congress, to blast Emanuel for standing in the way of reform over a period of several years:
“He has not stood up for immigrants. He has not moved comprehensive immigration reform forward. He has not made the right decisions, he has made political decisions,” Gutierrez said. “That’s not what the immigrant community deserves in the next mayor of the city of Chicago.”
But now, a year and a half later, Emanuel and Gutierrez appear to have patched up their differences. Indeed, Gutierrez apparently has been sufficiently satisfied with Emanuel’s record on immigration-related issues as mayor that when Emanuel proposed his Welcoming City Ordinance last week, Gutierrez was there by his side to show his support:
“If the mayor of the city of Chicago is going to work to make Chicago a model city with respect to policy and its treatment of immigrants, then I’m going to stand with that mayor,” Gutierrez told reporters. [link]
At another level, Emanuel’s shift to a more aggressively “immigrant-friendly” stance after coming home again should not be altogether surprising. After all, as mayor, Emanuel has had plenty of other contenders for the title of “third rail of politics,” such as closing police stations to address budget shortfalls. And long before Emanuel assumed office, Chicago could already have staked a strong claim to being the nation’s most “immigrant-friendly” city, and Illinois to being its most immigrant-friendly state.
In recent years, Illinois has been at the national forefront in developing new programs to promote immigrant integration, beginning with former Governor Rod Blagojevich’s “New Americans” initiatives in 2004 and 2005. Moreover, in contrast to states like Arizona, which require employers within their states to use the federal government’s E-Verify pilot program to verify their employees’ work eligibility, in 2007 Illinois sought to prohibit use of E-Verify within the state until concerns about the accuracy, effectiveness, and privacy of the new federal database system could be resolved. Last year, in addition to adopting its DREAM Act, Illinois became the first of several states to attempt to opt out of the federal government’s controversial “Secure Communities” program, which seeks to enlist state and local police in day-to-day federal immigration enforcement activities. Also in 2011, Cook County, in which Chicago is located, adopted an ordinance apparently similar to the one that Emanuel has proposed now, prohibiting county officials from detaining individuals longer than their criminal cases require even if ICE lodges a detainer requesting that they be held beyond such periods of time for immigration enforcement purposes. (For good measure, even CBS’s hit TV show “The Good Wife,” which is set in Chicago, has repeatedly presented the city and its residents in an immigrant-friendly light.)
Although news coverage has emphasized the potential for a clash between Emanuel and his erstwhile colleagues in the Obama administration — who have aggressively championed state and local involvement in immigration enforcement through Secure Communities and other initiatives — Rahmmigration presents an even sharper and more notable contrast with Romneygration. During the primary campaign, Romney embraced, as a “model” for immigration policy, a series of initiatives almost diametrically opposed to those taken by Illinois and Chicago:
In last night’s debate, for example, he was asked about his preferred approach to immigration policy, and Romney responded, “I think you see a model in Arizona.”
* * *
Romney is an inflexible opponent of the DREAM Act; he’s palling around with Pete Wilson and Kansas Secretary of State Kris Kobach; he endorses a “self-deportation” agenda; he’s critical of bilingualism; and his casual dismissals of “amnesty” and “illegals” are a staple of his campaign rhetoric.
Romney, by any reasonable measure, is the most right-wing candidate on immigration of any competitive presidential hopeful in generations. [link]
Shorter Romney campaign: “Hey, look over there!” *runs out of the room*
— daveweigel (@daveweigel) July 12, 2012
Ummm, talk about your “dead fish.” To date, Romney appears not to have publicly commented on Emanuel’s proposed ordinance — which is hardly a surprise, given that since becoming the presumptive Republican nominee, Romney has scrupulously avoidedsaying anything non-squishy on the subject of immigration at all. Other immigration restrictionists, however, have taken note of the contrast between Arizona and Illinois. At a hearing before a House subcommittee – held the same morning that Emanuel appeared with Gutierrez in Chicago to announce his proposed ordinance – ICE Director John Morton got an earful from Republican members of Congress pressing the administration to move as aggressively against some of the immigration-related policies being implemented in Illinois as it did against Arizona’s SB 1070 and Alabama’s HB 56. Morton signaled that legal action against Cook County may indeed be on the horizon – in which case action against Chicago might not be too far behind if it adopts Emanuel’s apparently similar proposed ordinance.
Chicago, Cook County, and Illinois are not the only subnational jurisdictions vying to be “anti-Arizonas” on the subject of immigration. In recent weeks, Washington, D.C., has adopted an ordinance influenced by the Cook County ordinance, and the California Senate adopted the TRUST Act, which would establish essentially the same policy on ICE detainers statewide in California. In these jurisdictions and others, a significant impetus for legislation has been concern that ICE — contrary to its stated enforcement priorities — has been using state and local police to target individuals who lack serious criminal records or outstanding warrants, and that the net result has been diminished trust and cooperation with the police among members of immigrant communities.
So is a “showdown” looming between the Obama administration and jurisdictions such as Cook County, Chicago, Washington, D.C., and California? If so, the administration may find itself fighting on a lot of fronts — especially with litigation against Arizona, Alabama, and other enforcement-oriented jurisdictions continuing in the wake of the Supreme Court’s split decision in Arizona v. United States. Moreover, the legal case against laws like the Cook County ordinance hardly seems a slam dunk. Although ICE Director Morton insists that the Cook County ordinance violates federal law, and has referred the matter to the Justice Department to assess measures that might be taken, even an aggressive reading of Arizona v. United States makes that conclusion rather arguable. While 8 U.S.C. § 1373(a) prohibits local governments from “prohibit[ing], or in any way restrict[ing], any government entity or official from sending to, or receiving from [ICE] information regarding the citizenship or immigration status . . . of any individual,” the decision by these state and local jurisdictions not to treat ICE detainers as authorizing longer periods of detention does nothing by itself to inhibit such information exchange. To the contrary, treating ICE detainers as authorizing or, for that matter, requiring detention of individuals for immigration enforcement purposes beyond the period otherwise authorized for criminal law enforcement purposes would appear to raise significant concerns under both the Fourth and Tenth Amendments. (Even in Arizona v. United States, the Court emphasized that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”) While Morton has also argued that Cook County’s position might jeopardize federal funding to reimburse the cost of detaining non-citizens who are potentially deportable on criminal grounds, the ultimate strength of this legal argument also remains unclear. Perhaps it is no surprise, therefore, that ICE has sought a negotiated resolution of its dispute with Cook County, whose position might be understood — along with those of Chicago, California, and other jurisdictions resisting ICE’s efforts to dragoon state and local governments into federal immigration enforcement matters — as an effort to shape the national debate over immigration policy by engaging in what Heather Gerken has termed “dissenting by deciding.”
These disputes illustrate some of the ways, as I have discussed elsewhere, that traditional assumptions concerning the relationship between immigration and federalism may be incomplete. Traditionally, immigration law has been understood to constrain state and local involvement in the regulation of immigration in part based on the premise — entirely understandable, so far as it goes — that non-citizens are more likely to face hostility, discrimination, or disadvantage at the hands of state or local governments than at the hands of the federal government. While non-citizens may indeed often be vulnerable to hostility or discrimination by state and local government actors, as many conclude to be the case in states like Arizona and Alabama, when the federal government itself has become more aggressive in its regulation of immigration status, such as with programs like Secure Communities, non-citizens have often — contrary to prevailing assumptions concerning immigration and federalism — found greater receptiveness for the protection of rights and liberties in state capitals and local city halls, rather than in Washington.
Understood in this context, the apparent contrast between Congressman and Chief of Staff Rahm Emanuel, the Washington politician avoiding a “third rail” of national politics, and Mayor Rahm Emanuel, the “immigrant-friendly” Chicago politician, seems less remarkable. Perhaps technical legal questions of immigration preemption and immigration federalism also are less important in this context than the ultimate political questions: how will Congress and the President choose to navigate between and respond to the competing impulses of pro-enforcement jurisdictions like Arizona and Alabama, on the one hand, and more “immigrant-friendly” jurisdictions like Chicago, Washington, D.C., and California, on the other, at a time when both sets of impulses to “dissent by deciding” are becoming ever more forceful and assertive?