Testimony Before the Texas Senate Committee on Transportation and Homeland Security and Committee on International Relations and Trade

Testimony Before the Texas Senate Committee on Transportation and Homeland Security and Committee on International Relations and Trade

Matt A. Mayer

Chairs Carona and Lucio, Vice-Chairs Watson and Patrick, and Committee Members, thank you for this opportunity to come before you to share my thoughts and answer your questions as best I can. The purposes of this hearing are to:

• Study and make recommendations to stem the tide of illegal immigration, drug trafficking, and human smuggling, and to reduce the criminal activities with the border region;
• Evaluate the state's homeland security efforts and the state's recent $140 million investment in law enforcement to help secure the border, study and make recommendations to deter transnational drug-related gang violence and crime, including the use of injunctions and any possible improvements to Chapter 125 of the Civil Practices and Remedies Code, relating to membership in street gangs; and
• Study and make recommendations for the creation of a tamper-proof driver's license or photo ID that complies with the federal Real ID Act, including the implementation of the Secure Enhanced Drivers' License Program (SB 11, 80th Legislative) by the Department of Public Safety and to issue recommendations for improving and expanding the pilot program.

Immigration law is mostly covered in the Immigration and Nationality Act (INA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which amended the INA.[1]  

Given the massive influx of an estimated twelve million illegal immigrants into the United States since the amnesty of 1987, these topics are not only timely, but also desperately need action. I would be remiss, however, if I didn't address the broader issue of illegal immigration and the authority of state and local governments to act regardless of acquiescence by the federal government.

Before I get too far in my remarks, let me take a moment to provide you with my background. I am a reformed lawyer who has now been out of the practice longer than I was in the practice. Since leaving the practice of law, I have served as the Deputy Regulator for then-Governor Bill Owens in the State of Colorado. I left that position to join the fledgling U.S. Department of Homeland Security (DHS) where I was the Chief of Staff in what was called the Office for Domestic Preparedness. When my boss resigned, Secretary Tom Ridge named me as the Acting Executive Director of that office, which had been renamed the Office of State and Local Government Coordination and Preparedness. I led that office for 11 months.

Shortly after Secretary Michael Chertoff joined DHS, he and the Deputy Secretary asked me to serve as the Policy and Operational Counselor to the Deputy Secretary. I performed that function concurrently with my other two positions at DHS. In that role, I participated in the development of today's federal policy both on the border and in the interior of the country. These policy developments included migration from the detention-and-release policy to the detention-and-remove policy, the much-needed transformation of the Citizenship and Immigration Services office, and the increased focus on securing the border.

I serve as an Adjunct Professor at The Ohio State University, where I teach a course called "Homeland Security and Terrorism: A Comparative Analysis of Responses within the Transatlantic Alliance." I am currently working on a book titled Decentralizing Homeland Security: Protecting America from Outside the Beltway, which, as the title indicates, argues for a return to our federalist system in which state and local governments played a stronger role on the critical issues impacting the lives of Americans.

Finally, I am also a Visiting Fellow at The Heritage Foundation, a think tank in Washington, D.C., where I research and write about homeland security issues. I am heading a project for The Heritage Foundation that seeks to develop solutions for state and local governments in four homeland security areas: preparedness and resiliency, disaster management, interior illegal immigration enforcement, and counter-terrorism. It is my fundamental belief that the U.S. Constitution created a federalist system in which the federal government possesses expressed, but limited, powers in which the states and the people retain all remaining powers.

Specifically, the Ninth and Tenth Amendments firmly established our federalist system of government by first stating that the rights contained in the Bill of Rights should "not be construed to deny or disparage others retained by the people" and then adding the corollary limiting provision that "powers not delegated to the United States by the Constitution [] are reserved to the States respectively, or to the people."[2]  As James Madison noted in The Federalist Papers, "The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the States."[3] 

As has been demonstrated time and time again over the years, Washington rarely, if ever, succeeds where wide variations in challenges and needs exist (i.e., one-size-fits-all fits few well) and where urgency of action is vital (i.e., bureaucratic process kills). This failure stems largely from an inability to ensure effective action and leadership from Washington, D.C., due to the inherent bureaucratic processes attendant with federal decision-making, as well as from the difficulties faced due to the geographic size and diversity of the United States and the minimal manpower the federal government actually controls across America.

With the passage of the 17th Amendment in 1913 during the Progressive Era, senators were elected popularly by the people, which disconnected them from being accountable to state legislatures. Not surprisingly, both the era of unfunded mandates and the massive expansion of the federal government began soon thereafter-especially given that the passage of the federal income tax under the 16th Amendment in the same year provided for the means to fund the activities of the expanding federal government.

Critically, when states lost their ability to rein in recalcitrant senators who voted for legislation that would grow federal power at the expense of state power or for legislation that would pose an unfunded mandate on the states, senators could support legislation that proved popular despite the short- or long-term consequences of the legislation on the states. At the federal level, once an illegal immigrant crosses the border or overstays his visa, the task of apprehending, detaining, and removal the illegal immigrant falls on DHS' Immigration and Customs Enforcement Office (ICE). ICE currently employs 5,000 agents to perform all of its missions, "which include enforcing immigration law in the interior of the United States, stemming the flow of illicit drugs, and deterring money laundering, among other things."[4]  As with most elements of the federal government following the September 11, 2001, attacks, "the majority of ICE's resources have been directed at stemming terrorist-related activities and activities that have a national security interest."[5] 

With under 5,000 ICE agents-or one agent for every 2,400 illegal immigrants-focused on detention and removal activities in the United States, it simply makes little sense not to bring to bear the full power of the one million state and local law enforcement personnel to our interior enforcement actions. These men and women serve as enormous force multipliers, and, given their familiarity with their communities, are far better at navigating the difficult issues involved with the detection, detention, and removal of illegal immigrants.

While section 287(g) of the INA is finally getting used after ten years of lying dormant, the entire premise that state and local governments need the agreement of the federal government to control their jurisdictions is simply baseless. By passing interior enforcement legislation, states will be empowered to enforce their own laws dealing with illegal immigrants and those who employ, house, or otherwise aid them and, thereby, create greater pressure on the federal government to allocate the detention and removal resources necessary to deport illegal immigrants apprehended by state and local governments.

Whether good policy or not, the reality is that "[m]ere illegal presence in the U.S. is a civil, not criminal, violation of the INA, and subsequent deportation and associated administrative processes are civil proceedings."[6]  This distinction is important and has become the focal point upon which pro-illegal immigration groups are attacking state and local government action.

The highest hurdle for state and local governments to overcome in dealing with illegal immigration issues within their jurisdictions is the Supremacy Clause of the U.S. Constitution. The Supremacy Clause states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."[7]  The Supremacy Clause gives the Congress the authority to preempt state and local laws "where concurrent jurisdiction exists."[8]  Congressional preemption can occur explicitly via statutory language stating as much or implicitly via intent to regulate an entire field or when state or local law conflicts with federal law.[9] 

Specifically, in express preemption cases, for the federal law to preempt state law, the federal law must contain explicit language that such preemption was "the clear and manifest purpose of Congress."[10]  On immigration issues, because the Congress provided exceptions for state and local laws dealing with "licensing or similar laws" concerning the employment of illegal immigrants, the Congress failed to occupy the entire field of immigration law.[11] 

In implied preemption cases, the U.S. Supreme Court noted three situations where implied preemption negates state or local laws: first, if the state or local law attempts to regulate immigration; second, if the federal law "occupies the field;" and, third, if the state or local law conflicts with federal law.[12]  When evaluating a preemption claim, the courts are required to "start[] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress."[13] 

Nonetheless, state and local governments did not cede their inherent police powers when the U.S. Constitution was ratified. As a result, state and local governments retain inherent authority to enforce federal criminal law. Many experts believe state and local governments also retain inherent authority to enforce federal civil law. After all, it would make little sense if state and local governments were left powerless to deal with the influx of illegal immigrants into their jurisdictions. Absent a criminal violation, illegal immigrants could flout their presence in cities and states across America.

Certainly, the Founding Fathers did not intend such an outcome when they drafted the U.S. Constitution and included the Ninth and Tenth Amendments. As the U.S. Supreme Court has found, state and local police power is "an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort, and general welfare of the people."[14]  Those sovereign powers "proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the constitution, what they were before."[15]  As the Fifth Circuit Court of Appeals concluded: "No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws."[16] 

Obviously, this inherent authority becomes critical given that an illegal immigrant's presence in the United States is only a civil violation.[17]  In 2002, Attorney General John Ashcroft announced that the federal government's position was that state and local governments could enforce federal civil law. Specifically, Attorney General Ashcroft stated:

When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed on the NCIC (National Crime Information Center) for violating immigration law, federal law permits them to arrest that person and transfer him to the custody of the INS. The Justice Department's Office of Legal Counsel has concluded that this narrow, limited mission that we are asking state and local police to undertake voluntarily-arresting aliens who have violated criminal provisions of the Immigration and Nationality Act or civil provisions that render an alien deportable, and who are listed on the NCIC-is within the inherent authority of states.[18] 

Importantly, "the authority of state and local law enforcement officers to investigate and arrest for violations of federal law is determined by reference to state law."[19] 

Moreover, as the U.S. Supreme Court noted: "States possess broad authority under their police powers to regulate the employment relationship and protect workers within the State."[20]  As such, state and local actions "to prohibit the knowing employment by . . . employers of persons not entitled to lawful residence in the United States, let alone to work here, [are] certainly within the mainstream of such police power regulation."[21]  In what is the strongest statement on this issue, the U.S. Supreme Court noted:

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.[22] 

State and local governments have wide latitude to enact laws concerning traditional issues within their jurisdictions.

For example, in February 2007, the City of Valley Park, Missouri, enacted an ordinance that prohibited the employment of illegal immigrants.[23]  A business found violating the ordinance would have its license suspended.[24]  In January 2008, the United States District Court for the Eastern District of Missouri (Eastern Division) found that "the Ordinance is a regulation on business licenses, an area historically occupied by the states."[25] 

Likewise, in Arizona, the legislature passed a law aimed at employers who hire illegal immigrants in 2007.  The Legal Arizona Workers Act gave "the Superior Court of Arizona [] the power to suspend or revoke the business licenses of employers who intentionally or knowingly employ unauthorized aliens."[26]  In February 2008, the United States District Court for the District of Arizona concluded that the initiative and the requirement to use the E-Verify system were constitutional.[27]  On June 12, 2008, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments on the case, and the transcript of the hearing indicates that two of the three judges support the district court's decision.[28] 

This issue of whether state and local government possess the inherent authority to enforce federal civil law is not a theoretical one. To wit, "four of the nineteen 9/11 hijackers had law enforcement encounters with local police in the six months preceding September 11, 2001."[29]  The four included ringleaders (and pilot) Mohammed Atta and Nawaf al-Hazmi, as well as pilots Hani Hanjour and Ziad Jarrah.[30]  Each one of these terrorists had violated civil provisions of federal immigration law.[31] 

Critically, it is not for the courts to decide whether a particular state or local law is good public policy or not. Rather, as the U.S. Supreme Court found, "debatable questions as to its reasonableness, wisdom and propriety are not for the determination of courts, but for the legislative body, on which rests the duty and responsibility of decision."[32] 

As this Committee knows, in partnership with the federal government, starting in 2002, state and local law enforcement could enter into Memorandum of Agreements (MOAs) pursuant to 287(g) of the INA that deputized them to help the federal government enforce immigration law. As of April 1, 2008, in six years, ICE has entered into 41 MOAs, and trained and deputized 660 state and local law enforcement officers-less than 10 officers per month.[33]  This represents a positive step, but it also demonstrates that Section 287(g) on its own is not a panacea.

For state and local governments to truly tackle their illegal immigration problems, they must take a more aggressive approach then simply relying upon ICE to do its duty and to federalize a handful of state or local officers each year. There are many additional actions that state and local governments can take. Some states such as Arizona and Oklahoma and some localities such as Valley Park, Missouri, and Hazelton, Pennsylvania, have taken aggressive action. Thus far, most federal courts, as noted above, are finding these actions constitutional. Critically, state and local government action should be aimed at "remov[ing] or reduc[ing] the economic incentives for unlawful presence."[34] 

The list below represents options for state and local government action:

• Require the use of the E-Verify system for all businesses for employment, financial, and housing transactions;
• Suspend business licenses for the employment of unauthorized aliens;
• Require business filings and business tax returns to include an attestation from the employer that they did not employ unauthorized aliens in the last twelve months, and make it a felony to file a false attestation;
• Require state income tax returns to include an attestation from the filers that they did not employ unauthorized aliens in the last 12 months and make it a felony to file a false attestation;
• Make it a felony for unauthorized aliens to work in Texas, punishable by imprisonment and a fine;
• Make it a felony to falsely claim legal presence in the United States;
• Make it a felony and a predicate racketeering crime to smuggle aliens;
• Make it a crime to rent, lease, or sublease living space for use by unauthorized aliens;
• Expand law enforcement arrest power to include misdemeanor violations of the INA;
• Permit the temporary detention of individuals charged with misdemeanors, such as traffic violations where probable cause exists that they are unauthorized aliens, so that federal entities can retrieve them;
• Prohibit sanctuary cities, including day-labor sites;
• Mandate the use of the Systemic Alien Verification for Entitlements system to verify entitlement to all state and local government benefits;
• Deny enrollment to or financial aid for state licensed higher education institutions to unauthorized aliens, including in-state tuition qualification;
• Restrict unauthorized aliens' access to non-essential public benefits and services;
• Prohibit tax deductions for business expenses related to unauthorized aliens;
• Institute a withholding tax for all electronic funds wire transfers to foreign parties or on negotiable bank drafts and international money orders without a valid social security number;
• Ban the use of foreign identification documents to establish identity or to obtain state identification cards unless accompanied by a U.S. document that demonstrates legal presence in the United States; and
• Restrict the use of taxpayer identification numbers for purposes not authorized by the Internal Revenue Service, including identification, unless accompanied by a U.S. document that demonstrates legal presence in the United States.[35] 

On border-related issues, while the federal government is constitutionally charged with securing our border, there are two key actions that state and local law enforcement can take that have worked. First, in Arizona, the legislature passed a human smuggling bill that law enforcement used to arrest "coyotes" and the illegal immigrants who paid the coyotes to help them cross the border. This law serves as a strong deterrent.

Next, for several years now, the federal government has provided funds for Operation Stonegarden, which allows state and local law enforcement personnel to assist the U.S. Border Patrol in securing the border. The program reimburses state and local law enforcement for the time their personnel spend enforcing the border. In Fiscal Year 2008, the federal government will spend $60 million on the program. Operation Stonegarden dramatically has reduced illegal border crossings when in full operational mode.

While some of these measures will increase the short-term costs of reducing illegal immigration in Texas, the long-term costs should drop as illegal immigrants decide to remain in their own countries due to the lack of economic opportunities here or choose another state with more accommodating laws and regulations.

The cost of both legal and illegal immigrants is difficult to determine. The Heritage Foundation determined that for low-skill immigrants lacking a high school degree, immigrants receive "three dollars in government benefits and services for each dollar of taxes they pay."[36]  Of the illegal immigration population, roughly "61 percent of illegal immigrant adults lack a high school diploma [while another] 25 percent have only a high school diploma."[37]  The poverty rate for illegal immigrants is double the rate of Americans.[38]  "Over a lifetime, the typical low skill immigrant household will cost taxpayers $1.2 million dollars."[39] 

For state and local governments the economic costs of illegal immigrants can be crushing. For example, up to three million people who illegally crossed the border are living in Texas. Depending on the education levels and familial status of those three million illegal immigrants, Texans could be paying over $6 million per year in non-reimbursed government benefits and services.

In addition to the economic costs, as anyone who has spent time on the southern border knows, illegal immigrants cause significant environmental and property damage. Whether it is the tons of trash, such as water jugs, clothes, or empty food cans discarded by illegal immigrants or the destruction of fences and trampling of plants and grasses as they make their way to pick-up destinations, illegal immigrants are doing untold harm to large swaths of land.

From a funding standpoint, as more state and local governments act to deal with the illegal immigration crises within their jurisdictions, their already resource-constrained budgets are forcing them to divert resources from traditional crime fighting activities to illegal immigration activities.[40]  Some contend this funding crunch represents yet another unfunded mandate from the federal government to state and local governments.[41]  Because state and local government action is voluntary, such a claim is difficult to prove.

Moreover, the unfunded mandate claim somewhat undermines the correct argument made by state and local governments that they possess inherent authority to enforce federal civil immigration law, as well as their own laws. Critically, state and local government must keep in mind that the Congress gave the U.S. Attorney General the authority to reimburse state and local governments for the detention of illegal immigrants.[42]  If Texas is not already seeking the reimbursement of these funds from the Attorney General, it should.

Some of the actions noted above could increase government funds or decrease government costs. Nonetheless, state and local governments should take action-not because of the government's improved monetary position-but because doing so ultimately will lead to a stronger Texas.

We are at a crossroads. Today, we stand at the intersection of federalism and centralized government. The roads that led us to this intersection involved many twists and turns. We can choose one of two paths forward. The left path leads us further away from our Constitutional underpinnings, where the federal government takes still more power from state and local governments under the guise of the latest emergency. Whether the war was spent fighting a depression, poverty, or the ills of society, the means are always the same. At the end of this path, we are sure to find what we have found each time we took this path-more federal power, less freedom, and few results.

We could, however, take the road less traveled. The right path may seem battered and poorly maintained, but it looks vaguely familiar. This path will lead us back toward our Constitutional underpinnings where the federal government possessed limited and discrete powers and where state and local governments possessed the bulk of the powers that impacted our lives. The last time we took this path was after spending 30 or so years on the left path on which we fought a battle over how best to provide welfare to the least fortunate in our country.

The results achieved once we took the right path were stunning. With our very way of life at stake, we don't have thirty years to fight this battle over where the power of interior enforcement should reside. If we take the right path, we can be sure that the results will be as stunning as they have been each time we have upheld our Constitution.

The time to choose is at hand. Which path will Texas choose?

Once again, thank you for the opportunity to appear before you and answer any questions you might have on this important topic.

Matt A. Mayer is a Visiting Fellow with The Heritage Foundation, President and Chief Executive Officer of Provisum Strategies, LLC, and an Adjunct Professor at Ohio State University. These remarks were delivered before Texas Senate Committee on Transportation and Homeland Security and Committee on International Relations and Trade on July 9, 2008.