The U.S. Department of Homeland Security’s Immigration and Customs Enforcement—or ICE—has entered into MOUs—Memoranda of Understand—with local police departments that will enable Trump to deputize local police to carry out mass deportations. The ICE MOUs are a rent-a-cop arrangement for ICE to use local police for ICE’s immigration-enforcement purposes.
The ICE MOUs give Trump a contractual means to circumvent elected local officials from preventing their police from cooperating with ICE. These MOUs not only require local police departments to provide their officers for immigration investigations and joint operations, but they also shift the costs of enforcement from the federal government to local cities, school districts, and counties. Beneath the radar of public scrutiny, ICE has quietly built a nationwide web of these MOUs with local police departments.
But Pasadena’s experience this month shows that progressives can thwart ICE’s MOUs when sunlight is shined on them. ICE-PD MOUs have fatal defects if local governments simply decide to disentangle their police departments from cooperation with ICE. When progressives unearthed the ICE-Pasadena PD MOU, exposed it to public scrutiny, and organized opposition to it, within four days Pasadena’s ICE MOU was dead meat. Progressives can and should do the same thing in other immigrant-friendly cities, counties, and school districts.
ICE’s web of MOUs with local police departments that require them to provide their officers to ICE
MOUs are contracts. ICE enters into MOUs with local police departments for rent-a-cop arrangements to enforce immigration laws. The ICE-Pasadena PD MOU is generically titled “Memorandum of Understanding (MOU) between Immigration and Customs Enforcement and Local, County, or State Law Enforcement Agency for the Reimbursement of Joint Operations Expenses from the Treasury Forfeiture Fund.” Googling the first 11 words of the title will disclose scores of such MOUs across the nation. Some of the MOUs available through Google have generic titles like the ICE-PPD MOU, while some have titles that include the name of the local PD. But all of them have essentially the same language in them except for the substitution of the name of the local PD. The MOUs available on Google are undoubtedly just the tip of the iceberg as they are the ones that happened to be publicly disclosed for a variety of reasons.
Despite their titles which suggest they are just for local policing reimbursement purposes, the ICE MOUs uniformly impose a contractual obligation on local PDs to provide officers to ICE to enforce federal immigration law. That obligation is unequivocally spelled out in the MOUs’ §5-A: “To the maximum extent possible, [the local PD] shall assign dedicated officers to investigations and joint operations.”
Thus, if the MOUs are properly authorized, signed, and remain in effect, local PDs would be contractually obligated to provide their police to ICE for ICE immigration-enforcement investigations and joint ICE-local PD operations to the maximum extent possible. Cities with such MOUs would be in breach of contract for failing to do so even if the cities’ elected officials pass resolutions or ordinances intended to disentangle them from ICE.
The ICE MOUs shift the cost of federal immigration enforcement from the federal level to local cities, counties, and school districts
The ICE MOUs superficially seem to provide federal dollars to local jurisdictions. But the reality is that ICE’s MOUs shift much of the funding for federal immigration enforcement to local jurisdictions by their reimbursement formula. The ICE MOUs reimburse local jurisdiction only for the overtime pay of the local officers that ICE rents from the local government. The ICE MOUs do not provide for reimbursement for the base pay of the officers they require local PDs to dedicate to federal law enforcement. Moreover, the MOUs expressly prohibit any reimbursement for fringe benefits and for the taxes on officer salaries.
Because the benefit load for police officers is usually higher than 50% of their base salary, the limited payment of only the overtime pay means that the federal government is paying less than 40% of the cost of each rent-a-cop while the local agencies are paying more than 60% of the officers’ costs. The ICE MOU rent-a-cop scheme thus shifts most of the costs for local police involvement in Trump’s mass deportation plans to local cities, counties, and school districts with police departments.
ICE’s MOUs will become a central part of Trump’s enforcement plan through “local partnerships”
During the Obama administration, ICE’s MOUs were not heavily used. But Trump’s plan for massive deportations will require their extensive use. While the Trump administration says it intends to hire 15,000 more immigration enforcement officers, doing so will take years. The last time there was an attempt to get a sudden influx of federal enforcement officers, backgrounds checks were waived and the result was massive corruption and infiltration by drug cartel agents. It’s unlikely that experiment will be tried again.
Saturday’s Washington Post reported that directives being vetted now by the Secretary of Homeland Security provide for expanding “partnerships with municipal law enforcement agencies that deputize local police to act as immigration officers for the purposes of enforcement.” The ICE MOUs will be the primary vehicles to implement these “partnerships” .
The ICE MOUs fatal flaws – the right to terminate and approval requirement
The ICE MOUs have basic flaws that can interfere with their being used to implement the intended “partnerships” with local police that will deputize them to enforce federal immigration laws and that thereby give progressives the opportunity to demand the end of these MOUs:
- First, they allow the local government to terminate the MOUs at any time by a simple letter to ICE.
- Second, local police chiefs usually don’t have the authority to enter into contracts for their local governments; usually some higher level of authority is required.
At least in Pasadena’s case, ICE purported to enter into its MOU with the Pasadena PD simply based on the signature of Pasadena’s police chief. California law provides that contracts which are not signed by a local government’s authorized representative are void. Pasadena’s City Charter requires an officer of the City – a status that the Police Chief does not have – to sign contracts with it in order for the contracts to be effective.
So Pasadena’s MOU has never been valid. We don’t know to what extent ICE is relying upon the signatures of local police chiefs for its MOUs without getting the legally-required signatures, but that may be its usual practice. After Pasadena’s void MOU was publicized, the local ICE representative told the media that it considered the ICE-Pasadena PD MOU still enforceable. It appears ICE is just blowing smoke to avoid admitting that many or most most of its MOUs cannot be enforced.
Pasadena’s successfully quashing its ICE MOU – shining the light on local PD hidden agreements with ICE
Pasadena progressives successfully got its ICE-PPD MOU repudiated in just four days. We obtained the ICE MOU through a California Public Records Act request and released it to the media on February 12. Pasadena progressives quickly mobilized to publicize the MOU and its conflicts with Pasadena’s stated policy of not having its police officers enforce federal immigration law.
Intending to advocate the termination of the MOU to the City Council’s Public Safety Committee meeting on February 15, Pasadena progressives showed up at the meeting to be pleasantly surprised hearing City Manager Steve Mermell inform the public that the City Charter requires him to sign off on the MOU, that he had not signed off on it, and that he was not going to sign off on it.
The success of Pasadena in getting the ICE MOU repudiated arose from a perfect storm that skewered ICE. The existence of the contract with ICE had never been disclosed outside the police department, leaving the City Manager, the Mayor, the Chair of the Public Safety Committee, and even Councilmembers who almost always support the wishes of Pasadena’s police union outraged at the MOU being hidden from them. In that environment, the clear voice of Pasadena’ progressive community ensured that the ICE-PPD MOU was unacceptable.
Progressives in other cities may not have as fortuitous circumstances as occurred in Pasadena, but this is a fight we can win in most communities. The battle begins by making a public records act request for all MOUs and agreements with ICE; such agreements cannot be suppressed under The California Public Records Act.
If the local MOU does not have the required levels of approvals, recognition of their unenforceability – as occurred in Pasadena – should be demanded. It the local MOU has the requisite levels of authority, a termination letter from the local government’s mayor and/or city manager or a resolution requiring termination by the governing board should be demanded.
The ICE MOUs are inconsistent with the commitment of many of California’s cities, counties, and school districts that their police will not enforce federal immigration law. By shining sunlight on the existence of these MOUs, progressives can win this fight.
Skip Hickambottom and Dale Gronemeier