ICE provides weak legal rationale for making S-COMM mandatory

08.17.2011-[In]secure Communities action-4954Last week, Immigration and Customs Enforcement (ICE) released a memo explaining its legal rationale for making the misleadingly named Secure Communities program (S-COMM) mandatory on state and local governments. ICE had kept the memo secret until a court ordered its disclosure.

Launched in 2008, S-COMM requires police agencies to submit to the FBI the fingerprints of all suspects they detain, including those who ultimately are not convicted. The fingerprints are then run through various federal databases to check the suspect’s immigration status. Because the fingerprint data is shared with federal agencies prior to an arrestee being charged or tried—even if the person is mistakenly arrested or eventually acquitted—S-COMM has eroded the trust of immigrant communities in their local police. This lack of trust—and its associated lack of willingness to report crime or act as witnesses—endangers public safety for all.

US citizens, too, are significantly impacted by S-COMM through their own apprehension and through the impact on their family members.

S-COMM has been met with strong resistance. Many cities have attempted to opt out of it even though Secretary of Homeland Security Janet Napolitano claims that opting out is not an option. In addition, the governors of Illinois, Massachusetts, and New York have formally rejected the program and Santa Clara County in California recently ended its collaboration with ICE.

The extent to which S-COMM is implemented across the nation is important in another respect. In December, I argued that by making S-COMM mandatory for all law enforcement agencies, the FBI hopes to spur public acceptance of the Next Generation Identification, a massive new biometric identification system that presents considerable threats to our civil rights and liberties.

Since 2008, the government has given conflicting statements as to whether S-COMM is mandatory. In fact, the court which ordered the memo’s disclosure found “ample evidence that ICE and DHS have gone out of their way to mislead the public about Secure Communities.”

The disclosure was unexpected because the government was planning to appeal the order by arguing that the memo was protected under the attorney-client and deliberative process privileges.

Dated October 2, 2010, and titled “Secure Communities – Mandatory in 2013,” the memo was prepared by an ICE legal advisor.

It argues that current federal statutes and their accompanying legislative history as well as case law support the position that participation in S-COMM will be mandatory in 2013.

The legal arguments, however, are tenuous and, if offered in court, may not be found persuasive.

The memo relies on three statutes: 28 U.S.C. section 534, relating to Attorney General sharing of criminal records with other government officials; 8 U.S.C. section 1722, which mandates a data-sharing system to enable intelligence and law enforcement agencies to determine the inadmissibility or deportability of an alien; and 42 U.S.C. section 14616, which establishes an information-sharing compact between the federal government and ratifying states.

While it may be true that these statutes establish that the FBI and state and local law enforcement agencies have the authority to share fingerprint information with DHS and ICE, they do not support the conclusion that S-COMM, or any criminal information sharing program, is mandatory on state and local agencies. Logically, the leap in reasoning is too great and ultimately, unconvincing.

The memo also explains that compelling participation in S-COMM does not raise constitutional concerns. In a seminal case called Printz v. United States, the US Supreme Court explained that under the Tenth Amendment, “[t]he Federal Government may not compel the State to implement, by legislation or executive action, federal regulatory program.” The Court stated, however, that “federal laws which require only the provision of information to the Federal Government” are permissible and do not violate the Tenth Amendment.

The ICE memo argues that S-COMM would not violate the Tenth Amendment because it “does not require local officials to do anything that they do not already do.”

Yet the memo recognizes (but does not persuasively overcome) the fact that S-COMM actually requires state officials to conduct ministerial-related IT tasks which would be impermissible under the Printz case.

Practically, the government would find it very difficult to argue that the program does not obligate state and local officials to conduct any task that they are not already obligated to do under state law.

Given the significant weaknesses in the legal arguments, the memo’s conclusion that “there is ample support for the argument that participation in Secure Communities will be mandatory in 2013” seems disingenuous.

ICE may have been so reluctant to disclose the memo precisely because the legal rationales it contains are so weak, revealing the shaky grounds upon which S-COMM relies.