From 287(g) to SB 1070: The Decline of the Federal Immigration Partnership and the Rise of State-Level Immigration Enforcement

In July 2009, the Department of Homeland Security (DHS) dramatically altered the notorious 287(g) program, a program that cultivates partnerships between Immigration and Customs Enforcement and local law enforcement. Billed as an effort to standardize immigration enforcement while focusing efforts upon priority aliens, the policy shift instead managed to subvert the drafters’ intent, undermine local and federal enforcement goals, whittle the once broad and flexible 287(g) program down to impotent redundancy, and foster an environment that compels states and communities to take immigration enforcement into their own hands.

This was the opening salvo of a persistent campaign to bind state-level enforcement efforts to the Obama Administration’s selective immigration enforcement policy. This effort would assume the national spotlight in the legal battle over the policy’s own progeny, the controversial Support Our Law Enforcement and Safe Neighborhoods Act (SOLESNA), popularly known as Arizona Senate Bill 1070.

This Note is one part local immigration enforcement primer and one part chronicle of the struggles between federal and state policy. It must be so, for one cannot seriously examine the modern state-level immigration enforcement authority without endeavoring to chart the ironic trajectory of the Obama Administration’s attempts to thrust its selective immigration enforcement scheme upon the states. This Note examines the foundations of local immigration enforcement. It then analyzes the evolution of the 287(g) program, concluding that the policy alterations therein have both precipitated and justified the accelerating trend toward sub-federal exercise of inherent authority and police power in the struggle against illegal immigration.