Virginia’s state troopers should have the authority to enforce federal immigration laws against the most dangerous criminal elements, Bob McDonnell, the state’s Republican candidate for governor has argued. This policy stance has larger federalist implications and should curry favor with 10th amendment proponents, but it has earned little media attention throughout the campaign.
An obscure provision of federal law makes it possible for local and state officials to be trained as federal immigration agents. Section 287 (g) of the Illegal Immigration Reform and Immigrant Responsibility Act authorizes the Immigration and Customs Enforcement Agency (ICE) to form partnerships that can be shaped to suit local priorities. Although this option has been available since 1996, most partnerships have been formed in just the past few years, according to ICE.
In an interview, McDonnell said he favors state-wide application of the 287 (g) program because in his view it would compensate for the lack of resources available to ICE. While serving as attorney general, McDonnell worked with local governments in Prince William, Herndon and Rockingham counties to establish 287 (g) agreements. Tim Kaine, the state’s Democratic incumbent governor, has resisted using the program on a state-wide basis.
“With the lack of resources and staff both Republican and Democratic congresses have given to ICE, I think the only way we were going to have reasonable enforcement in Virginia is for Virginia officials to do it on their own,” he said. “287 (g) allowed a legitimate and prudent way to address that and so I was concerned about having each county and each city out there by itself, which was why I asked the governor to, in at least the most serious crimes, allow Virginia state police officers to be trained as ICE agents and he repeatedly refused.”
Gov. Kaine has said previously that he is opposed to having state officials assume what should be federal burdens because this would subtract away from their primary responsibilities.
McDonnell is unmoved by this rationale because state and local officials already encounter illegal aliens in their daily routine. He expects this dynamic to continue, so long as the federal government fails to step up and meet its enforcement responsibilities.
“Regardless of where people stand on immigration policy and the idea of comprehensive reform, there is broad agreement concerning the detention and removal of the most dangerous offenders who have committed crimes beyond their immigration violations,” McDonnell said.
There is a precedent for cooperation between Virginia officials and federal agents that could give a boost to McDonnell’s 287g, should he prevail on Tuesday. ICE agents placed 171 convicted sex offenders into deportation proceedings after exchanging information with the Virginia state police as part of “Operation Cold Play” back in 2008.
As a result of working in close concert with local governments that took up the 287g program, McDonnell said he would be well positioned to help craft the right program as governor.
“We actually had a template for how those agreements must be drawn up so they would meet with the approval of ICE and I think that’s a tool that a governor has to have at his or her disposal that I would use,” he said.
The idea of allowing for states to have greater autonomy and dexterity in the implementation of public policy could have larger ramifications, if a Gov. McDonnell can invoke the 287g program, as a successful example of federalism in action.
“There is a lot of discussion now about federalism and the forgotten 10th amendment and what the founders intended,” he said. “If the federal government would restrain itself and adhere to constitutional limits, we’d have a whole lot less national debt and we’d have more effective state governments that are closer to the people and listen better.”
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