The Bush administration is moving toward giving state and local police an expanded role in enforcing the nation's immigration laws. Although this move is being justified as part of the war on terrorism, it will do little to stop terrorists and will frighten immigrant communities.
The administration's interest in involving state and local police in enforcing immigration laws represents a shift in strategy. All 19 Sept. 11 hijackers entered the United States legally as tourists or students. Washington is looking for ways to keep terrorists out. The border security bill the Senate passed last month helps address the problem. Among other things, it would create a comprehensive terrorist database that officials can consult when granting visas.
But prevention can fail; thus the administration's interest in enlisting state and local police. Now the responsibility for enforcing immigration law rests exclusively with the Justice Department. State and local police generally cannot arrest people solely for being in this country illegally. Police departments have liked this division of labor, since enforcing immigration laws could take time away from more pressing crime-fighting duties and harm their relations with immigrants.
In 1996, Congress authorized the attorney general to make agreements with state and local governments permitting them to enforce immigration laws. But before Sept. 11, lack of state and local interest, coupled with opposition by pro-immigrant and business groups, kept agreements from being struck.
The Bush administration now wants to put the 1996 law to work. It has found an eager partner in Florida, which hopes to conclude an agreement soon. The State Legislature in South Carolina is considering a bill that would enable it to follow Florida's lead. Some in the administration want to go even further. The Justice Department has drafted an opinion that argues state and local authorities already have the power to arrest people for violating immigration laws. If the White House accepts this interpretation— which would reverse both customary practice and a Justice Department legal opinion from 1996 that said local authorities should not make "arrests for civil violations of immigration law"— the nation's 600,000-plus local police would potentially be free to arrest illegal immigrants at will.
Proponents say local police need this authority because the Immigration and Naturalization Service, which the Justice Department oversees, does not have enough agents to root out terrorists. A common fear is that someday— it has not happened yet— local police might be forced to let illegal immigrants they suspect of terrorism go because the I.N.S., even after the restructuring being debated now in Congress, will be too shorthanded to come get them.
But it is doubtful that turning state and local police loose on illegal immigrants will do much to stop terrorism. An estimated eight million people live in the United States illegally; the number who intend harm is small. State and local police probably would not have prevented Sept. 11 even if they had been empowered to enforce immigration laws. The 19 hijackers all entered the United States legally, and 17 of them still had valid visas on Sept. 11.
With so few visa-violating terrorists to find, the temptation to target ordinary illegal immigrants would be great. That would do more harm than good. Arresting otherwise law-abiding people will divert police resources away from other duties. Should the police begin arresting every suspected illegal immigrant they detain at a traffic stop, they would overwhelm the immigration system.
There is also a grave risk of racial profiling and civil rights abuses, not just against noncitizens but also against citizens deemed not to look "American." Such practices would undercut the progress police have made around the country to earn trust within immigrant communities. Last fall some local officials objected on just these grounds to the Justice Department's efforts to question thousands of Arab-Americans as part of the early response to Sept. 11. Police have learned that people worried about their immigration status will shun cops, not cooperate with them. They are also reluctant to ask for police protection when they truly need it.
The proposed change in policy would intensify the divide between immigrants— most of whom are here legally— and everyone else at precisely the moment when the country should be coming together. Rewriting immigration enforcement policy isn't needed, anyway, to fight terrorism. Hiring more I.N.S. agents, which the Senate border security bill does, sufficiently addresses fears that police might one day find themselves forced to let Qaeda operatives go. That increase in staffing would preserve the traditional— and sensible— division of labor between federal and state and local authorities on immigration. It would also ensure that our law enforcement efforts remain targeted where they belong: on terrorists and not immigrants.