When Jessica Pishko speaks to people about immigration, she says they often expect a dramatic turn of events should former President Donald Trump win the election.
Pishko, an attorney specializing in criminal law, says “a lot of people are envisioning something like a military invasion.”
It lines up with Trump’s central campaign promise: mass deportations.
The former president has said that in order to deport over 11 million undocumented people living in the U.S., he’d invoke the Alien Enemies Act of 1798, deploy troops to the border using the Insurrection Act and mobilize local police.
Legal scholars question the feasibility of the first two options, but they say the last one, using local law enforcement agencies to question and detain undocumented immigrants, is a more likely scenario.
A Trump administration could simply push local law enforcement to ramp up the existing program of collaborating with Immigration and Customs Enforcement (ICE). The program, 287(g), or “Secure Communities,” has existed since the 1990s, and has been praised by Trump. Currently, counties in 21 states participate.
But many have also refused.
Pishko, who recently authored the book The Highest Law in the Land, which explores the power of sheriffs in America, says this collaboration program “is not financially viable for sheriffs. It doesn't give them any funding.”
Many local law enforcement agencies also believe partnering with immigration authorities creates an environment of distrust with the communities they’re trying to serve, especially in places with a high number of immigrants and Latinos who could be racially profiled.
Ultimately, Pishko says, under a Trump administration, immigration crackdowns would boil down to each state’s discretion.
“Technically, the federal government can't force local law enforcement to do anything. That's just well-established law. They can't commandeer local law enforcement, but states can,” she says.
The move by conservative states to take immigration enforcement into their own hands is already happening.
Just in the last few years, Oklahoma, Iowa, Texas and others have tried to pass laws to enforce immigration law, challenging the authority of the federal government.
In Arizona, voters will decide this week on Proposition 314, which would allow police to question and arrest people they suspect recently crossed the border undocumented.
While these attempts have had support from some local law enforcement agencies, they’ve also received plenty of pushback.
Proposition 314 has been criticized and rejected by sheriffs in counties on the border, who either say they don’t have the resources to implement it, or that it erodes trust between police and civilians.
“This would be a disaster for me, because I would be sued for racial profiling,” says Sheriff David Hathaway. His county, Santa Cruz, along the border with Mexico, is overwhelmingly Hispanic. “It's guaranteed it would happen.”
Immigration enforcement is arguably the linchpin of the Trump campaign, with over 80% of Republican voters saying it’s a major issue.
But the pushback from local law enforcement begs the question: How realistic is Trump’s promise to deploy the police?
Kevin R. Johnson, from the School of Law at U.C. Davis, says a Trump administration could threaten to cut federal funds to local police if they refuse to partner with federal immigration enforcement.
“A fair amount of federal funding for law enforcement is given to state [and] local governments," he says. "I know budgets are tight and they're looking for resources.”
In fact, during his presidency, in 2017, Trump tried this. Almost immediately after stepping into office, he issued an executive order stating that "sanctuary jurisdictions" that refused to comply with immigration enforcement measures would not be eligible to receive federal grants.
It was ultimately declared unconstitutional, but it created fear among immigrants and mixed-status American families.
Johnson says this was a constant theme of the Trump administration: immigration policies that were eventually declared illegal, but sent a strong message both to law enforcement and communities.
“The noise is as painful as the policy,” he says. “And the policy … sometimes things stick.”
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