Politics & Policy

The ACLU vs. the Rule of Law

(John Moore/Getty Images)
Police must honor ICE detainer orders, issued to hold aliens who have committed crimes.

Immigration enforcement has been under attack since our current president was sworn in, despite his constitutional oath requiring him to “take Care that the Laws be faithfully executed.” The systematic breakdown of immigration law enforcement under the Obama administration has wrought severe consequences. We see hundreds of thousands of illegal aliens overwhelming the Border Patrol in Texas. Interior enforcement has dwindled to anemic levels, sending the message that if you break our laws, there are few consequences. Now, a new front in this war against the rule of law has come to Iowa. Twenty-two of 99 Iowa county sheriffs have bowed to the ACLU by refusing to honor Immigration and Customs Enforcement (ICE) detainers on criminal aliens.

ICE detainer orders are to ensure that criminal aliens already in custody — usually of local law-enforcement agencies — will be held for up to 48 hours to give ICE time to assume custody. Detainer orders are issued for those who have committed serious criminal offenses; they are a commonsense way of helping local law enforcement and ICE conserve valuable resources while they protect our communities. ICE detainer orders are based on immigration law, which directs the Secretary of Homeland Security to promulgate regulations necessary to detain individuals who are subject to removal. Federal regulation covering detainer orders clearly states that an agency “shall maintain custody of the alien” if it receives an order.

This unequivocal language clearly articulates a local law-enforcement obligation to honor detainer orders. But, for the Obama administration and the ACLU, amnesty trumps the law. On February 25, 2014, Dan Ragsdale, who was then the acting director of ICE, issued a letter stating that ICE detainers “are not mandatory as a matter of law.” This remarkable sleight of hand was parroted straight from the ACLU. In 2012, the ACLU sent a “fact” sheet to local law-enforcement agencies claiming that ICE detainers were not mandatory because no actual penalty for non-compliance existed. The staggering implication of the ACLU argument is that one is not compelled to obey a law unless the fear of consequences compels one to comply.

The ACLU/Ragsdale rationale, coupled with an ACLU letter threatening litigation if local law-enforcement agencies honor ICE detention orders, creates a legal question for county sheriffs. If ICE detainers were not mandatory, then local law-enforcement agencies might be liable if they mistakenly detained a person. However, the plain language of the law states that the law enforcement “shall” hold the criminal alien. No binding precedent in the Eighth Circuit, the federal appeals court that covers Iowa, says otherwise, and until such time that it does, all law enforcement in Iowa is bound to follow the law and honor detainer orders.

Fear of frivolous ACLU lawsuits is no excuse to ignore lawful orders from the federal government. This is a legal fight worth having, and the law is on the side of those who are defending immigration enforcement. Even in the White House, where they are guilty of dereliction of duty in not enforcing the law, administration officials still claim that they prioritize removing aliens who commit crimes and victimize citizens. It would be constructive to see Attorney General Holder value legal consistency over political expediency by informing local law enforcement that federal immigration law is supreme and they are required to honor ICE detainer orders.

It is disappointing to witness a commonsense policy, designed to keep criminals off the street, frustrated by a lawless administration and a radical left-wing group. In fiscal year 2013 alone, 212,455 ICE detainer orders were filed. Imagine a world where all of these criminal aliens were immediately set free. ICE does not have the resources to relocate them, certainly not before many of them commit more crimes against citizens all across the country.

I call on all law-enforcement agencies to stand firm on this critical issue. We cannot allow the ACLU threats to determine our immigration and law-enforcement policy. Reckless lawlessness has already resulted in millions of people living illegally in the country, and in a border crisis that has shocked many Americans. The only path to restoring the rule of law starts by respecting and enforcing the laws already on the books. The safety of our communities and the future of our country depend upon it. If we bow to the outrageous demand of the ACLU and ignore detainer orders, the price will be paid by thousands of crime victims who would otherwise have been protected by law.

— Steve King is a Republican U.S. representative from Iowa.

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