Why is the Obama administration using its executive powers to implement a general amnesty for the vast majority of illegal aliens present in the U.S.? And why is it abusing its law enforcement power to try to prevent states from finding illegal aliens?
The Justice Department has sued Arizona, Alabama, South Carolina and Utah over their new laws that require police officers to check the immigration status of individuals arrested or detained for violations of state laws if there is a reasonable suspicion the person is unlawfully present in the United States.
On Monday, the Supreme Court has announced that it will hear challenges to the Arizona law.
Yet -- hypocrisy alert -- the State Department is doing everything it can to ensure that local law enforcement authorities determine the citizenship status of individuals they arrest in order to guarantee that foreign nationals, including illegal aliens, are notified of their right to assistance from their country’s consular officials.
Consider the lawsuit the Justice Department filed against South Carolina on Oct. 31. The complaint says that South Carolina’s requirement that the immigration status of arrested individuals be verified “will cause the detention and harassment of authorized visitors, immigrants, and citizens…It will conflict with longstanding federal law governing the registration and movement of aliens.”
But the Obama State Department is so concerned about providing consular access when non-citizens are arrested in the United States that it has put out a 144-page manual on “Consular Notification and Access.”
It is pretty difficult to provide arrested individuals with notification of their consular rights unless local police officers determine that they are, in fact, foreign nationals.
The State Department manual, published by the Bureau of Consular Affairs, contains detailed instructions for “Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them.” It even has a “model standard operating procedure” that it recommends be adopted by local police agencies as “a template.”
Page five of the manual lays out a flow chart for local police officers to follow when they arrest an individual. If the individual is not a U.S. citizen, it tells officers to “inform detainee, without delay, that he or she may have consulate notified of arrest/detention” (emphasis in original). In fact, in complete conflict with the Obama Justice Department’s litigation strategy against state immigration laws, the manual, in the “Frequently Asked Questions” (FAQ) section, says that “[r]outinely asking every person arrested or detained whether he or she is a U.S. citizen is highly recommended.”
The entire manual and the model template make it very clear that the State Department believes that local law enforcement has a duty when it arrests or detains a foreign national, to “immediately or as soon as reasonably possible, and in no case longer that the end of the booking shift” to “[n]otify the nearest consulate of the foreign national’s country.” Pages 108 through 128 of the manual even provide the phone and fax numbers of foreign embassies to make it easier for local police officers to comply.
In justifying its lawsuits against the states, the Obama administration has also made public claims that state laws that authorize citizenship verification of arrestees will lead to racial or language profiling – that individuals may be treated as non-citizens just because they don’t speak English well.
However, in the FAQ section of the State Department manual, on page 13, in answer to the question of how an arresting officer may know “that someone is a foreign national,” the State Department says “unfamiliarity with English may also indicate foreign nationality.”
The State Department’s actions are in large part a result of the Supreme Court’s decision in Medellin v. Texas in 2008, in which it refused to stop the execution of a Mexican national who gang-raped and murdered two girls in Texas.
Medellin, who was in the United States illegally, had not been advised of his consular access rights under the Vienna Convention on Consular Relations when he was arrested. The Obama administration even went to the Supreme Court in June of this year to ask it (unsuccessfully) to stop the execution of another illegal Mexican national, Humberto Leal, who murdered a 16-year old girl in Texas, because he had also not been advised of his right to diplomatic counsel.
According to the State Department’s own website, the Department considers it important that state and local law enforcement comply with the Vienna Convention so that our own citizens will be provided with the same type of assistance by “U.S. consular officers” when they are abroad.
So while the State Department is doing everything it can to encourage local law enforcement officials to check the citizenship status of anyone arrested so that the U.S. can comply with treaty-provided consular access privileges, the Justice Department is suing to prevent local law enforcement officials from checking the citizenship status of anyone arrested even when they have a “reasonable suspicion” that the individual is in the United States unlawfully.
This despite the fact that the State Department manual says on page 13 that it “is the arresting officer’s responsibility to inquire about a person’s nationality if there is any reason to believe that he or she is not a U.S. citizen.” “Any reason to believe” is a less strict standard than “reasonable suspicion.”
It’s time for the Obama administration to stop suing states and start cooperating with them, encouraging them to help the federal government find, detain and deport illegal immigrants. If it lacks the courage to do that, and it truly believes, as its litigation indicates, that authorities should not be checking the citizenship status of local lawbreakers, than the State Department should withdraw its “Consular Notification and Access” manual, and stop telling local police officers to comply with the Vienna Convention by checking the citizenship status of criminals. And it should quit asking the Supreme Court to prevent the executions of convicted murderers because local police did not identify them as foreign nationals.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former Counsel to the Assistant Attorney General for Civil Rights at the Justice Department.
Hans A. von Spakovsky is a former Justice Department official. He is the co-author, with John Fund of "Obama's Enforcer: Eric Holder's Justice Department" (Broadside/HarperCollins 2014). He is Manager, Election Law Reform Initiative and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.