Barking Up the Wrong Tree

By S.D. Plissken | August 1, 2018

The Dover City Council passed a resolution on Wednesday, July 11, 2018, that called on Governor Sununu (R), the NH congressional delegation (Senators Jeanne Shaheen (D) and Maggie Hassan (D), Representatives Carol Shea-Porter (D) and Ann McLane Kuster (D)), and Director of Homeland Security Kirstjen Nielsen, to demand an end to the Border Patrol’s “coercive checkpoints” in the state and to “immediately halt” policies that separate or imprison families.

This was their third resolution on this topic. Last year, on Wednesday, October 11th, the Dover City Council passed a resolution, unanimously. Last month, on Wednesday, June 27th, the Dover City Council passed a similar resolution, unanimously (with one member absent), that called on the Trump Administration to immediately end its “zero-tolerance” immigration policy that has led to thousands of family members being separated while attempting to cross the US border.

However, the US Immigration and Customs Enforcement agency (ICE) seems to have slipped past their resolutions somehow. ICE lists an address in the Strafford County Complex in Dover as being one of its Detention Facilities. (That is just 4 miles from where the Council passes its resolutions). In fact, ICE identifies this address in the Strafford County Complex as being its Boston Field Office. (There is nothing new in this as the Strafford County House of Corrections has been housing ICE detainees since at least 2008).

None of this needs to be. The Federal government is supposed to supply its own officials to implement its own policy initiatives. It cannot compel local officials to participate. In 1842, Supreme Court Justice Joseph Story wrote in Prigg vs. Pennsylvania that

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

This is the so-called Anti-Commandeering Doctrine. It has been used to oppose the Fugitive Slave Law (1850) and a host of other iniquities. It appeared more recently in Printz vs. United States (1997).

Neither the NH Department of Corrections nor the Strafford County Sheriff can be compelled to participate in ICE initiatives. They do so voluntarily. The NH Department of Corrections has been receiving so much per head to house ICE detainees; the Strafford County Sheriff has been receiving so much per head to transport them. (A recent contract between the Sheriff and his deputies incorporates this transporting into their duties as a regular task). They are doing this for ICE detainees taken in the whole northeastern tier of states.

So, Dover City Council, you are barking up the wrong tree. Imagine an alternative reality. Instead of addressing a fourth resolution to distant authorities, you make a couple of in-state phone calls. “Hello Sheriff (and fellow Democrat) Dubois, could you stop taking Federal money to transport ICE detainees? Thanks” and “Hello Commissioner Hanks, could you stop taking Federal money to house ICE detainees? Thanks.”

The notion of refusing to support officials with which you do not agree is not new. Etienne De La Boetie advised in 1549:

I do not ask that you place hands upon the tyrant to topple him over, but simply that you support him no longer; then you will behold him, like a great Colossus whose pedestal has been pulled away, fall of his own weight and break in pieces.

References:

Concord Monitor. (2018, July 2). Change of priority: As ICE bumps up security at the border, Strafford County jail sees hike in immigrant inmates. Retrieved from www.concordmonitor.com/As-ICE-bumps-up-border-security-Strafford-County-jail-sees-hike-in-immigrant-inmates-18447934

Corwin, Emily (NHPR). (2017, March 22). N.H.’s Immigration Detention Facility Saw Spike In February. Retrieved fromdigital.vpr.net/post/nhs-immigration-detention-facility-saw-spike-february

De La Boetie, Etienne. (1549). Discourse on Voluntary Servitude. France.

Foster’s Daily Democrat. (2018, June 28). Dover Council May Take Immigrant Action. Retrieved from www.fosters.com/news/20180625/dover-council-may-take-immigration-action

Foster’s Daily Democrat. (2018, July 11). Dover City Council Demands End to Checkpoints. Retrieved from www.fosters.com/news/20180711/dover-council-demands-end-to-border-checkpoints

Labor Relations Information System (LRIS). (2014). Collective Bargaining Agreement. Retrieved from www.lris.com/wp-content/uploads/contracts/straffordco_nh_sheriff.pdf

Maharry, Michael (TAC). (2013, December 28). States Don’t Have to Comply: The Anti-Commandeering Doctrine. Retrieved from tenthamendmentcenter.com/2013/12/28/states-dont-have-to-comply-the-anti-comandeering-doctrine/

Manchester Union-Leader. (2017, July 2). New wall has opened door to more illegal aliens at Strafford County jail. Retrieved from www.unionleader.com/crime/New-wall-has-opened-door-to-more-illegal-aliens-at-Strafford-County-jail-04032017

New England Center for Investigative Reporting (NECIR). (2017. August 07). In wake of immigration crackdown, some New England jails see brisk business. Retrieved from www.necir.org/2017/08/07/wake-immigration-crackdown-new-england-jails-see-brisk-business/

NHPR. (2018, June 28). In Dover, A Protest Against Family Separations And N.H. Border Patrol Checkpoints. Retrieved from nhpr.org/post/dover-protest-against-family-separations-and-nh-border-patrol-checkpoints

Pontoh, Dan (ACLU). (2017, October 11). Dover, NH Social Justice Action Alert. Retrieved from www.facebook.com/doverdemocrats/posts/2010453229211338

Tenth Amendment Center. (2013, October 15). No Water = No NSA Data Center. Retrieved from www.youtube.com/watch?v=8ANUo8BnYoo

Transactional Records Access Clearinghouse (TRAC) at Syracuse University. (2008). Detainees Leaving ICE Detention from the Strafford County Correction Facility. Retrieved from trac.syr.edu/immigration/detention/200803/STRAFNH/exit/

US Immigration and Customs Enforcement. (2018). Strafford County House of Corrections. Retrieved from www.ice.gov/detention-facility/strafford-county-house-corrections

WMUR. (2018, July 12). Some ICE Detainees Kept at Strafford County Jail. Retrieved from www.wmur.com/article/some-ice-detainees-kept-at-strafford-county-jail/22133924