The Heritage Foundation

Special Report #66 on Immigration

August 25, 2009

August 25, 2009 | Special Report on Immigration

Controlling Illegal Immigration: State and Local Governments Must Do More

Executive Summary

In 1980, illegal immigration in the United States was far from the overwhelming challenge it is today. It was only after the 1986 immigration reform bill, which provided amnesty to more than three million illegal aliens, that an ever increasing surge of people entering the U.S. illegally began. As the federal government failed to address the growing crisis, state governments began to take action. As early as 1994, Californians tried to deal with the financial burden of illegal immigration by passing Proposition 187, which would have limited financial benefits for illegal aliens in California. Although stopped by a judge and a new governor, Gray Davis, unwilling to defend the people's vote, California's actions foreshadowed what was to occur across the United States 10 years later, when the federal government failed its people once again.

At the same time, political leaders in Washington, D.C., began to feel pressure to be more aggressive in enforcing existing laws to secure America's borders and to deport those here illegally. The budgets of the U.S. Customs and Border Protection (CBP) and the U.S. Immigration and Customs Enforcement (ICE) skyrocketed. ICE moved from a policy of capturing and releasing illegal aliens to detaining and deporting them. The number of raids at work sites and of criminal aliens captured substantially increased. Unfortunately, having done so little for so long, ICE ran up against a basic mathematical problem: 12,000,000 illegal immigrants versus 6,000 ICE agents who were stretched thin with other pressing responsibilities.

To help overcome the numbers problem, ICE launched several programs to work with state and local law enforcement that would increase the penalties to illegal immigrants and those engaged in human trafficking. ICE launched the section 287(g) program in 2002, which deputized state and local law enforcement personnel to enforce federal immigration law. ICE also started the Criminal Alien Program (CAP), aimed at identifying criminals in state and local jails and prisons. Although good programs, the section 287(g) and CAP programs involved only a small number of jurisdictions, so their successes barely made a dent in the illegal alien population. The mathematical problem remained.

Starting in 2004, state legislatures began to assert themselves in the area of illegal immigration as the numbers problem equated to busted budgets and increasing societal burdens. Although the activity level in 2004 seems low today, at the time, the increase in bills passed that dealt with one of six aspects of illegal immigration caused a stir. By 2008, the increase in activity at the state level had jumped to 1,305 bills introduced and 209 bills passed. The primary areas of action were (1) driver's licenses and identification, (2) public benefits, (3) higher education benefits, (4) voting security, (5) criminal sanctions, and (6) employment. As states began to reclaim their historical roles and authorities under the Constitution, interest groups supportive of illegal immigration began their assaults in the courtrooms.

Constitutionally, other than in the areas of border security and visa policy, the Tenth Amendment ensures that states retain their traditional police powers to control their jurisdictions. Despite the enormous growth of the federal government from 1935 to today, states remain the "laboratories of democracy," exhibiting the flexibility to develop innovative solutions to America's toughest challenges. On interior illegal-immigration enforcement issues, states and localities are doing what they can to solve their problems.

With the onslaught of legal challenges from interest groups that drive the cost of reform ever higher, states have become more cautious in order to preserve what little that remains of their budgets after the economic downturn (and their years of big spending). States and localities have won all legal challenges that have reached federal appellate courts or state supreme courts. These legal victories should embolden states and localities to continue their push to curtail the migration of illegal aliens into their jurisdictions with tough laws against employing, housing, and aiding illegal aliens and even tougher laws criminalizing all aspects of human trafficking.

As this report highlights, states and localities can take more actions in more areas to control their jurisdictions. Congress should help them, not by passing an amnesty reform package, but by amending the statutory (not constitutional) provisions that limit the actions they can take and by increasing the legal means for foreigners to come to the United States to work. The only way to end or significantly slow illegal immigration in America is to create a mosaic of laws across the country that increase the cost of illegal immigration to a point that the supply dwindles to a trickle as the demand is filled by legal workers.

The fires of innovation are beginning to burn brightly in the individual states--which must be free to solve yet another of America's most complex problems. It is time for Washington, D.C., to stop watching the fire from afar and do all that it can to help the states.

Read the entire report (PDF)

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