LOCAL and state police currently cannot arrest illegal immigrants in most instances, based on a 1996 legal opinion by the US Department of Justice. The job of nabbing some 8 million such migrants has been left to just 2,000 special agents of the US Immigration and Naturalization Service (INS).
But after Sept. 11, Attorney General John Ashcroft recognized an urgent need to improve screening of visa violators and other illegal visitors in order to help safeguard Americans from more terrorist attacks.
In a written statement in early April, the Justice Department stated that "in the aftermath of 9/11, many state and local law enforcement agencies" had asked for a review of the 1996 opinion.
In many ways, the idea of local police who know their communities well holds appeal for federal officials. They want to re-tool their agencies to cope with the demands of a war on terrorism, which include more secure borders and a better sense of who's in the country legally and who's not.
Congress can help the administration by beefing up the budget of the traditionally underfunded Customs Service and by splitting the INS into a visa-issuing agency and a visa-enforcement agency.
On many fronts, the war on terrorism will need better coordination among all levels of government. Washington is making a start by having the FBI, INS, Justice, and the State Department share databases with an eye to keeping would-be terrorists out.
But in dealing with overstaying visitors and illegal migrants, federal resources are limited. Tapping local police would vastly expand INS capacity.
Further, local police already can, and frequently do, make arrests for other federal offenses and work in tandem with many federal agencies: with the Bureau of Alcohol, Tobacco, and Firearms on gun-smuggling; with the Drug Enforcement Agency on interdiction efforts; and with the FBI on bank robberies.
In fact, the FBI is giving serious thought to dropping the latter task a long-time staple of G-man work and giving more authority for the work to local police, who effectively do the bulk of it anyway.
About 96 percent of law-enforcement officers in the US are state and local. So the likelihood that a police officer would be the first to come across any type of violator is great. Indeed, it was a state trooper who caught Oklahoma City bomber Timothy McVeigh.
New York, Florida, and maybe other states want to join the INS in going after visa violators. But before the Justice Department changes the rule and essentially deputizes local police to enforce federal immigration laws, it must ensure that police will not engage in racial profiling, especially of Latinos. Such a possibility may explain the White House's concern over this move.
President Bush is working hard to woo the Hispanic vote, and not offend Mexico's President Vicente Fox as the two countries try to design solutions for illegal Mexican immigration. Also, many US mayors don't want to alienate immigrant communities, even for the purpose of counter-terrorism.
Another concern is the possibility of upsetting close ties that many local police have with immigrant communities. Those ties help solve other, often serious, crimes. If officers figuratively wear an INS badge and have the ability to detain illegal migrants or make arrests, they may not receive as much cooperation in crime investigations.
Further, police officers would need proper training in the basics of immigration law. Who will pay for that? Without such training, civil rights can be violated. When more than 400 people suspected of being illegal immigrants were arrested by local authorities in Chandler, Ariz., in 1997, they sued the city and won after a court found local police were wrongly asking for proof of citizenship. The city had to pay out $400,000.
Pushing visa enforcement down to the state and local level may be a necessary step; after all, that's where the so-called first responders are.
But in a nation with such diverse migrant populations and laws against discrimination, the federal government would need to do far more than just rewrite a legal opinion. Expanding the number of INS agents and improving their coordination with local police would be a safer first step.