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Detainers…what good are they?

March 31, 2017

At the center of the sanctuary city controversy is the refusal by local jurisdictions to honor immigration detainers for people committing or convicted of criminal activity.

According to most sources, including this one posted on the Bipartisan.org website, a detainer has about the legal force of an invitation to an event that contains the phrase “Please RSVP.”

In short, not much at all. Other than being socially blackballed, there are no legal penalties for refusing to RSVP an invitation, and the same is true of detainer requests.

It would therefore seem to be simple common sense that something should be done to give detainer requests a few more teeth, or to create a document that does have the force of law.

Agencies use detainers because they do not require a judges signature, which can take days to obtain, to be executable. They are therefore able to be delivered quickly enough to actually intercept the target before local jurisdictions can set illegal immigrants free.

For some reason, that legal clarification just isn’t happening.

For those that feel it is not just advisable but necessary for the protection of the public to stop the revolving door catch-and-release policies of the liberal left, that is just incomprehensible.

So far, the only real defensible arguments made by the liberals to justify catch-and-release is that they aren’t required to honor detainers because the whole issue is one of states’ rights.

So, what’s answer?  Will the President’s strategy to withhold funds get the job done?

That remains to be seen, but a good guess is that if only certain funds are targeted, the answer is “probably not.”

It is a given that any legislation at the Federal level to compel compliance with a detainer would be filibustered for so long that the illegal immigrants would die of old age before it passed, if it ever did.

At some point this whole question of who is in charge of immigration enforcement is almost assuredly going to hit the Supreme Court.

On the face of it, existing law would seem to be black and white on the subject, but obviously it isn’t being interpreted the same way nationwide.

As this treatise on the American Bar Association website notes, there is no specific wording in the Constitution that clearly states immigration policy is specifically reserved to the Federal government.

Such authority as is defined traces back to Article I, Section 8, clause 4 of the Constitution, but that clause, which refers only to naturalization, has been massaged by dozens, if not hundreds of legal findings since the Constitution was written, including at the SCOTUS level.

It is also worth remembering the context under which Section 8 was written.  At that time, the newly formed country was looking to encourage immigration, not restrict it.

Although most verdicts have found in favor of the Federal government’s right to regulate not just the means whereby a person can earn citizenship but who can enter the country, almost every decision goes back to Article 1 for its underlying legal principle.

For some reason that impressive body of case law hasn’t yet solved the problem.

It appears on the face of it that the only way the current problem can be addressed is either by passing a law compelling local jurisdictions to honor detainers, change the Constitution by adding or modifying a section to Article 1, or for the Feds to take every recalcitrant jurisdiction to criminal court over every instance of noncompliance.

The only other way would be for persons harmed by the catch-and-release sanctuary policies to file civil suits, probably with class action status, to tighten some real financial screws on enough local and state agencies to make it financially impossible for the sanctuary crowd to withstand the pressure.

Whatever the answer, something should be done about reducing the number of crimes committed by persons in the country illegally.

Current data is hotly contested by both sides of the argument, but suffice it to say, it’s a very large number.

The one thing that does seem to ring true is that the conditions that foster crime are magnified by a person’s illegal status.

The liberal answer to that is to make everyone in the country a citizen just by the very fact of them being here. They then argue that as citizens they could be prosecuted just like anyone else.

Somehow, that just doesn’t seem to be a wise and judicious use of the dollars we spend on law enforcement and the criminal justice system.

Of course if we can ever manage to figure out who gets in and who gets to stay, that would also solve the problem.

Think of it like this. If you had ants in your kitchen, which would make more sense…import more ants from your neighbor’s house or keep them out in the first place?

From → op-ed

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