Editor’s Note: Danny Cevallos is a CNN legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in Pennsylvania, New York and the US Virgin Islands, at the law firms of Cevallos & Wong in Philadelphia, and Edelman & Edelman in New York, where he is of counsel. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are his.
Danny Cevallos: The House has passed two immigration bills which come at a great cost
They may well become laws, but threaten our system of checks and balances
The House of Representatives has passed two bills, the “No Sanctuary for Criminals Act” and “Kate’s Law,” which are both part of the strict immigration changes President Donald Trump promised during his campaign.
One of these laws demands states assist in enforcing tight immigration controls and the other punishes repeat reentry of convicted, deported criminals by increasing federal prison sentences. Together, the laws seek compliance with federal immigration policies – carrying harsh penalties for states and convicted noncitizens alike.
If enacted, these bills will aid in punishing and removing criminal noncitizens from the United States. But the real issue is whether we can afford their costs, both constitutionally and financially.
The No Sanctuary for Criminals Act creates obligations, including requiring localities to comply with immigration detainers. States who resist will be ineligible for federal funds, including those under the Immigration and Nationality Act, the ‘Cops on the Beat’ program under the Omnibus Crime Control and Safe Streets Act of 1968, the Edward Byrne Memorial Justice Assistance Grant Program – or any other grant administered by the Department of Justice or Department of Homeland Security for law enforcement, terrorism, national security, immigration or naturalization. The bill passed 228-195.
The federal government, through Congress, certainly has the primary authority to make rules admitting or excluding noncitizens. States and cities do not set immigration policy. Therefore, it might seem that this law is clearly within the power of the federal government.
But the 10th Amendment to the Constitution prohibits the federal government from forcing individual states into administering or enforcing a federal regulatory program.
The federal government doesn’t always need to force the states to do something it wants them to do – sometimes Congress can use a carrot instead of a stick. It’s called the spending power. Congress can place conditions on disbursement of federal money to states.
It goes something like this: “Hey Louisiana, it’s the federal government. We aren’t saying you have to raise your drinking age from 18 to 21. But just so you know, we’re only giving bajillions of dollars in federal highway funds to good states with drinking ages of 21.”
That’s a true story, actually. Louisiana eventually gave in and raised its drinking age.
Still, even Congress’s economic incentives power has limits, according to the Supreme Court. One of these is that the financial inducement cannot be coercive. Congress oversteps its authority when economic encouragement becomes compulsion. It makes sense: spending clause legislation should not undermine the states’ independence.
In the case of states and their drinking ages, the Supreme Court held in 1987 that as long as Congress only cut a small percentage of federal funding, it did not amount to unconstitutional “coercion.”
The No Sanctuary for Criminals Act threatens to take away federal law enforcement money, and according to the bill’s language, make states ineligible for “any funds” or “any grants … related to law enforcement, national security.” That could be pretty coercive, for any state that has a crime problem … which is all of them.
The second law, Kate’s Law, is named for a young woman killed two years ago in San Francisco by an undocumented immigrant who had been deported five times. In 2015, Juan Francisco Lopez-Sanchez, who had seven prior felony convictions, randomly shot and killed Kate Steinle, 31, as she walked along a busy pier with her father.
The law would increase penalties, including incarceration, for undocumented immigrants who repeatedly enter the US illegally after being deported, especially if they have criminal records. Kate’s Law passed 257-167.
Before we enact Kate’s law, we have to confront a question: Does it make sense to punish people for not staying away from our country by keeping them in our country? And does the US want to pay for additional years of incarceration for people who could just be returned to their home countries? The fee to cover the average cost of incarceration per federal inmate in 2015 was $31,977.65 (or $87.61 per day).
This doesn’t mean we should remove every noncitizen convicted of a crime instead of imposing a prison term. Incarceration is punishment for citizens and noncitizens alike. But it gets strange when the crime being punished is illegal reentry, and the punishment is keeping them in the country they illegally reentered.
Furthermore, if we increase the maximum penalty, we’re choosing to pay more to house, feed and provide care for additional federal prisoners. Realistically, few convicted noncitizens will attempt to reenter the country after deportation. And even if some do, they are not all likely to commit homicide.
There are certainly some valid arguments supporting Kate’s Law. If you lock up someone in federal prison, he or she cannot victimize more people, while a deported person can sneak back into the US and commit more crimes. In other words, an incarcerated noncitizen cannot pose a threat to innocent people like Kate Steinle.
But the bill could be costly – and the question remains: is the potential safety benefit worth the price tag?
If it truly promotes safety, then perhaps Kate’s Law may be worth the substantial cost.
Reasonable minds may differ on whether Kate’s Law would be effective. Increased penalties are a common feature of new federal criminal legislation. But the No Sanctuary for Criminals Act feels like it violates fundamental principles of federalism, even if it somehow tiptoes past its inevitable challenges in the courts.