“Jurisdictions that adopt so-called ‘sanctuary policies’ also adopt the view that the protection of criminal aliens is more important than the protection of law-abiding citizens and of the rule of law … I commend the State of Connecticut on their commitment to complying with Section 1373”.
Those were the words of former Trump Attorney General Jeff Sessions in 2017 following a U.S. Department of Justice review to determine whether Connecticut was a “sanctuary state.” It turned out that the U.S. Department of Justice had mistakenly assumed that a proposed bill in our state legislature had been enacted into law.
The actual law, named “The TRUST Act,” does not violate any federal law but does clearly mandate that our state and local law enforcement agencies will not serve as an extension of the federal immigration police.
Last month “America First Legal,” an organization affiliated with Trump advisor Steven Miller, emailed Gov. Ned Lamont claiming that The TRUST Act violates federal law. The letter is filled with inaccuracies and mistaken interpretations of federal law and the U.S. Constitution, yet it explicitly threatened Connecticut officials with “criminal prosecution and civil liability for your illegal acts”. I’m guessing that the folks at AFL did not take the time to consult the legal rulings of the previous Trump Administration nor did they seem to review our state’s laws.
Trust between state and local law enforcement agencies and immigrant communities is vital to the public safety of all residents, Connecticut’s TRUST Act has enshrined that principle into law. Our state has a sizeable population of non-citizens. We know from experience that even properly documented immigrants will not cooperate with police if they fear that involvement will lead to seizure of undocumented friends and relatives. This, as you might expect, means crime victims and witnesses will not reach out to or cooperate with the police.
Although our TRUST Act has been in effect for eight years now, its provisions are likely to be extensively debated once the new administration takes office in Washington, D.C. For the benefit of all concerned, here are the key points of the law:
- Connecticut law enforcement agencies are prohibited from acting as agents of ICE (U.S. Immigration and Customs Enforcement) and from using any resources to assist immigration enforcement and are prohibited from asking an individual questions about his or her immigration status.
- Police, probation and parole officers, school resource officers, bail commissioners and judicial marshals will not hold prisoners based on a request from ICE without a warrant signed by a judge unless the individual has been convicted of a serious felony or is on the Terrorist Watch List.
- ICE agents will not be permitted to interview prisoners unless the prisoner consents in advance. This is the same rule that governs police access to incarcerated individuals, consistent with the protections contained in the Fourth Amendment to the Constitution of the United States.
- It prohibits using time or resources to communicate with a federal immigration authority regarding the custody status or release of an individual targeted by a civil immigration detainer, except if the law enforcement agency notifies the affected individual, in writing, of its intent to comply with the detainer and the reason for doing so.
The law does not prohibit sharing arrest information with the FBI and other federal law enforcement agencies.
For example, individuals subject to a custodial arrest are routinely fingerprinted and those prints are shared digitally with the FBI via the AFIS (automated fingerprint identification system). As a result, these are usually shared by the FBI with ICE, allowing ICE to decide whether to seek to detain that arrestee when they suspect he or she is not a citizen and is undocumented.
Some might wonder whether the new Congress together with the President can enact federal legislation forcing states to assist ICE in its detention and deportation plans. Fortunately, that question was answered by the Supreme Court of the United States in 1997 in Printz v. United States:
“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers . . . to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
It’s worth noting that decision and those words interpreting the Tenth Amendment to the Constitution of the United States were written by the late Justice Antonin Scalia, the court’s leading conservative voice at the time.
More recently, noted conservative Justice Samuel Alito authored another opinion reinforcing Scalia’s ruling 20 years earlier:
“The anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States… Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anti-commandeering doctrine simply represents the recognition of this limit on congressional authority,”
The bottom line for our state’s policy makers and interested residents is this: We weren’t penalized for the same law and policies during the first Trump administration, and we won’t be penalized this time.
The TRUST Act does not violate federal law and the federal government cannot, in Justice Scalia’s words, “commandeer” state government to carry out federal government responsibilities like immigration enforcement. Our state and local police are not the immigration police.
Mike Lawlor is an Acting Associate Dean and Associate Professor of Criminal Justice at the Henry C. Lee College of Criminal Justice and Forensic Sciences, University of New Haven.