ABSTRACT

Since 9/11 a great deal of attention has been placed on immigration enforcement as a pro-security tenet of the war on terror. In the months and years following the tragedy, the DHS lacked resources and was stretched thin by the demands the war on terror placed on its immigration agents. As a result, individual states and local law enforcement donned their ICE caps and began to enforce federal immigration laws, directly through 287(g) MOUs and indirectly though local anti-immigrant ordinances. This chapter addresses the controversy of federal preemption and immigration policy. Historically, immigration has been a federal matter. Since Proposition 187 passed in California, and more dramatically since 9/11, states and local governments have gotten themselves involved in regulating immigration. Both 287(g) authority and antiimmigrant ordinances are part of the post-9/11 wave of state and local control of immigration that was unleashed as a result of the April 2002 Bybee Memo, which heralded the “inherent sovereignty” of states to regulate immigration. Like the anti-immigrant ordinances, the Bybee Memo misreads the constitution and is bad policy. But it served as a catalyzing force among anti-immigrant forces around the country to mobilize against immigrants with the federal government’s blessing.