Navigating the Tensions: Diverging Views on Immigration Between the President, Governor, and Legislature
When President Donald Trump re-enters the White House on January 20, his promise to institute a mass deportation program will undoubtedly take center stage. His “Day One” pledge was to implement the “largest deportation operation in American history,” noting that he would utilize the U.S. military and enlist state and local law enforcement to help execute his plan. While the specifics of how such an operation will be carried out remain unclear, it will certainly require enormous resources and coordination among various federal agencies, including the Department of Homeland Security’s Immigration and Customs Enforcement, Customs and Border Protection, and the Department of Justice, among others. What is apparent, however, is that the sheer scale of such an undertaking, if it goes forward, may necessitate cooperation across federal, state, and local governments. While the exact way state and local governments might respond to or be affected by a federal mass deportation program remains uncertain, it is clear, at the very least, that the program could have significant impacts on the approach taken by states to deal with the President’s plan. In New York in particular, it could also bring to the forefront differences in approach between the governor and the state legislature in how to respond.
Putting aside the legal challenges and resulting litigation that will almost certainly follow, if history is any guide, some state governments will likely respond to a federal mass deportation plan by attempting to implement opposing legislation, rules, and regulations. New York, for instance, in 2020, following allegations that ICE officers were routinely arresting individuals who appeared at courthouses for reasons unrelated to immigration, passed, and former Governor Andrew Cuomo signed into law, the Protect Our Courts Act. This law prohibits ICE from arresting individuals going to or leaving a court proceeding unless there is an arrest warrant for that person.
In 2018, the New York State Driver’s License Access and Privacy Act, also known as the Green Light Law, was enacted. Among other things, the Green Light Law prohibits the Department of Motor Vehicles from sharing driver’s license data with agencies that primarily enforce federal immigration laws. Further back, in 2017, Governor Cuomo signed Executive Order 170, which, with certain exceptions, prohibited state government employees—including state law enforcement officers—from inquiring about a person’s immigration status or providing information to federal authorities for purposes of civil immigration enforcement. Executive Order 170, which remains in effect, also prohibits New York State law enforcement from using state resources to investigate or apprehend individuals wanted solely for a civil immigration offense.
Despite these efforts to reduce cooperation between the state, particularly law enforcement, with federal immigration officials, there is a mechanism that allows state and local police officers to take a more active role in immigration enforcement. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act was signed into law, adding a new section, 287(g), to the Immigration and Nationality Act. This little used section of law provides the authority for ICE, through a “287(g) agreement,” to cross-designate specially trained state and local law enforcement officers to perform certain federal immigration functions. In New York, only one county currently has such an agreement in place. Whether the Trump administration will seek to expand this federal program as part of a mass deportation program is a matter worthy of attention. However, many jurisdictions throughout the country have refused to participate for various reasons, including a lack of federal funding and concerns about potentially eroding trust within the community.
Past efforts in New York to limit cooperation with the federal government have also been somewhat ad hoc and have not explicitly restricted law enforcement involvement or potential cooperation with federal authorities in all circumstances. However, in recent years, bills have been introduced that aim to impose more stringent restrictions on cooperation with federal immigration officials, particularly in relation to police. Some of these bills, for example, include provisions that would specifically prohibit—with certain exceptions—state and local police from making an arrest for illegal entry or re-entry into the United States, collecting information about a person’s immigration status or citizenship, or generally communicating with federal immigration authorities about an individual they encounter as part of their duties as a police officer. Additionally, other provisions would expressly prohibit entering into 287(g) agreements. Such immigration-related bills are expected to be priorities in the upcoming legislative session.
While the current legislature will likely oppose immigration enforcement programs implemented by the Trump administration, it seems the governor’s approach may be at odds. Governor Hochul, who routinely emphasizes public safety as one of her top priorities, recently signaled a potential move toward a more cooperative stance, suggesting she may be somewhat more aligned with federal efforts, at least as it relates to those accused of committing crimes in New York. During a press conference last November, Governor Hochul made clear that she was supportive of legal immigrants and asylum seekers but indicated that she would be open to cooperating with the federal government by suggesting that she would work with ICE on deporting those who break the law. The governor clarified her position by pledging that her administration would release new policies to address immigration issues in New York, including efforts to assist in the deportation of those undocumented individuals who commit certain crimes. Such policies would likely require, at a minimum, some cooperation between state and local police with federal immigration officials, which the current legislature appears to be largely against.
Consequently, the potential for a collision course looms large, given these differing points of view. On the one hand, the Trump administration will be prioritizing stricter immigration enforcement and deportation; on the other, New York has historically rejected federal immigration enforcement undertakings. The key question on immigration in New York is whether the governor and legislature will coordinate in their efforts or pursue different paths. While much remains uncertain, whatever unfolds when the new Trump administration takes office on January 20, New Yorkers should brace for a clash of competing ideologies, which could set the stage for an interesting 2025.
John M. Czajka worked for many years in New York’s Executive Chamber and most recently served as General Counsel of the New York State Police. He is now a partner at Whiteman Osterman & Hanna, concentrating his practice in the areas of government relations and litigation.
