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)