Trump Must Go After New York’s Violation of Federal Immigration Law

At the end of the month, almost all criminals arrested for state crimes in New York, including sex crimes, will be released without posting bail. It is a suicidal policy, but it is nonetheless the state’s prerogative to engage in such suicide. What is not its prerogative is the New York law that took effect this week granting driver’s licenses to illegal aliens and blocking ICE access to criminal enforcement information. We have a national union with a federal government controlling immigration for a reason, and it’s time for the Trump administration to show state officials who has the final say over this issue.

Beginning this week, the NY state government is inviting any and all illegal aliens, with or without criminal records, to apply for driver’s licenses. As documentation, they can offer consular ID cards, which are fraught with fraud, expired work permits, or foreign birth certificates. They can even offer Border Crossing Cards, which are only valid for 72 hours and for a stay in the country near the border area! The state law further prohibits state and county officials from disclosing any information to ICE and bars ICE and Customs and Border Protection (CBP) from accessing N.Y. Department of Motor Vehicles (NYDMV) records and information.

It’s truly hard to overstate the enormity of the public safety crisis this law, dubbed “the green light law,” will spawn. There are currently 3.3 million aliens in the ICE non-detained docket who remain at large in this country. Just in one year, ICE put detainers on aliens criminally charged with 2,500 homicides. Given that New York has the fourth largest illegal alien population in the country, it is virtually certain that a large number of criminal aliens reside in the state and will now be offered legal resident documents to shield them from removal.

Some might suggest that this is the problem of New York’s residents and that it is their job and their responsibility alone to overturn these laws. But the difference between this law and their general pro-criminal laws is that when it comes to immigration, they simply lack the power to enact such a policy. Rather than the DHS and DOJ bemoaning these laws, it’s time for the Trump administration to actually stop them in their tracks. Otherwise the Supremacy Clause of the Constitution is nothing but ink on parchment.

A violation of federal law and the Constitution

8 U.S.C. § 1324 makes a felon of anyone who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place.” That statute also makes a criminal of anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” or anyone who “engages in any conspiracy to commit any of the preceding acts, or aids or abets the commission of any of the preceding acts.” Some form of this law has been on the books since 1891.

NY’s new law not only harbors illegal aliens but actually calls on the DMV to notify illegal aliens of any ICE interest in their files. There is only one purpose of this law: to tip off criminal alien fugitives that ICE is looking for them, the most literal violation of the law against shielding them from detection. Would we allow state officials to block information to the FBI, ATF, or DEA?

Moreover, New York’s Green Light law violates the entire purpose of the infamous 1986 amnesty bill, the Immigration Reform and Control Act (IRCA), which was “to combat the employment of illegal aliens.” The law specifically makes it “illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers.” Yet the rationale for the Green Light Law, according to supporters, was “getting to work” and “ensure that our industries have the labor they need to keep our economy moving.” That directly conflicts with federal law.

Finally, 8 U.S.C. 1373 prohibits state and local government from “in any way restrict[ing], any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” The entire purpose of this bill is to restrict all New York government entities from sending information on citizenship status to ICE.

Whether one disagrees with immigration laws or not, nobody can argue that the federal government lacks the power to enforce them. Immigration law is one of the core jobs of the federal government. People are free to go to any state once they are in the country, which is why the Founders transferred immigration policy from the states under the Articles of Confederation to the federal government under the Constitution.

This is why James Madison in Federalist #42 bemoaned that, under the Articles of Confederation, there was a “very serious embarrassment” whereby “an alien therefore legally incapacitated for certain rights in the [one state], may by previous residence only in [another state], elude his incapacity; and thus the law of one State, be preposterously rendered paramount to the law of another, within the jurisdiction of the other.” He feared that without the Constitution’s new idea of giving the federal Congress power “to establish an uniform Rule of Naturalization,” “certain descriptions of aliens, who had rendered themselves obnoxious” would choose states with weak immigration laws as entry points into the union and then move to any other state as legal residents or citizens.

As for immigration without naturalization, because of the issue of the slave trade, the first clause of Article I, Section 9 bars Congress from prohibiting “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit” until the year 1808. Well, Congress has long exercised that power to exclude over the past 200 years. New York has lacked the ability to maintain its own separate immigration scheme for quite some time.

When did the federal government become weak in the face of state rebellion?

By DHS’ own admission last week during the announcement of ICE’s fiscal year 2019 enforcement results, enforcement is losing ground thanks to sanctuary states. But when did states suddenly become so powerful in an era where they seem to rely on the federal government for everything? Yes, we believe strongly, as conservatives, in state powers over internal affairs related to health care, agriculture, education, housing, marriage, abortion, and election law – all issues the federal government and courts have stolen from states. But immigration and border affairs are 100 percent within the province of the federal government, as the Supreme Court reiterated in Arizona v. U.S.

Accordingly, it’s time for the Trump administration to treat New York as a law-breaking jurisdiction that is in a state of rebellion against the most ironclad national security powers of the federal government. Trump should refuse to sign a budget bill unless it contains a provision cutting off highway funding to New York. Illegal aliens, even those with records of drunk and reckless driving, will now have valid means of driving not only on New York’s roads but those of every other state. New York should not get federal transportation funds until the law is rescinded.

Also, Trump’s Department of Justice should send a letter warning all state and local officials that if they cooperate with this rebel law, they are in direct violation of federal law. One prudent county clerk in Erie County has already filed a lawsuit against the state warning that the law puts him at risk for federal prosecution. If DOJ officially threatens broad prosecutions, it will force internal strife and a likely change in the law.

Finally, other states run by Republicans should refuse to recognize NY driver’s licenses until the policy is overturned. Part of why states agree to reciprocity is because we all are supposed to follow the same standards of identification integrity under federal law. If New York is now going to accept any foreign document as authentication of identity, it compromises the entire integrity of a New York driver’s licenses, even outside the concern of illegal immigration.

According to a Harvard-Harris poll, 72 percent of overall voters and 76 percent of suburban voters oppose issuing driver’s licenses to illegal aliens. There is no bigger issue over which to force a budget fight.

Remember, the Left feared that Trump would not only block amnesty but begin removing some of these illegal aliens. The Left has responded by disobeying immigration law. If the federal government allows this to stand, it will be tantamount to de facto amnesty under a Republican administration. (For more from the author of “Trump Must Go After New York’s Violation of Federal Immigration Law” please click HERE)

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