Richard Kosich: A profile in cowardice — why Montgomery County rejected ICE cooperation
Neil Makhija and Jamila Winder, the chair and vice chair of the Montgomery County Board of Commissioners, respectively, recently penned an opinion article to the Inquirer published on May 14th outlining their rationale for rejecting the signing of a 287(g) agreement with Immigration and Customs Enforcement (ICE), the federal agency tasked with enforcing the nation’s immigration laws.
Far from providing a coherent justification for their actions, however, the article is sadly a profile in cowardice and only proves that the commissioners’ actions are a dereliction of duty to the citizens of Montgomery County.
Their messaging is also unmistakable: Montgomery County will provide cover for illegal aliens by effectively shielding them from federal law enforcement and thus endangering the public’s safety in the process.
Where to begin?
The best place to start is with Makhija and Winder’s egregiously indefensible rationale for not signing an agreement with ICE, which they claim is rooted in “constitutional principle, public safety, and fiscal responsibility.”
Regarding “constitutional principle,” they are actually correct in stating that “the president cannot draft state and local officials into implementing federal policy” in the way a military draft works. However, the President can use various tools at his disposal, such as federal mandates, funding and executive orders to encourage or even require state and local governments to implement federal laws and policies of the President’s administration.
One such tool is the Take Care Clause, which is found in Article II, Section 3 of the Constitution and states that “[the President] shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States” to assist in that duty. This clause has been interpreted as giving the President broad authority to take steps “as he shall judge necessary and expedient” to ensure federal laws are followed, including working with state and local officials, as opposed to drafting them.
For example, on Inauguration Day, President Trump issued an executive order titled “Protecting the American People Against Invasion,” which required ICE to continue authorizing state and local police to assist in immigration enforcement. The authority here stems implicitly from the President’s duty to enforce criminal statutes of the United States under the Take Care Clause.
State and local police are therefore acting as commissioned Officers of the United States via ICE’s authority granted to it by the President himself under Section 287(g) of the Immigration and Nationality Act (INA). And 287(g) agreements, in particular, are the official mechanism by which ICE delegates to state and local law enforcement officers the authority to perform specified immigration functions under the agency’s direction and oversight.
Participation in the 287(g) program is limited to local law enforcement agencies (LEAs) that enter into memorandums of agreement (MOA) with ICE as mandated by state legislation and statutes. Only LEAs that voluntarily sign an MOA with ICE are eligible for the 287(g) program, thus proving that local officials don’t have to be drafted into implementing federal policy — they can do it willingly.
Makhija and Winder also claim that 287(g) agreements make communities less safe by somehow undermining community trust that police need “to pursue justice effectively for all residents,” although they fail to provide any evidence to support this claim. Instead, they offer up the same old tired tropes about how immigrants are less likely to commit crimes (regardless of status), and that they are less willing to call police or emergency services out of fear when our immigration laws are enforced.
Makhija and Winder’s rationale essentially implies that sanctuary jurisdictions like Montgomery County are better off shielding dangerous, criminal illegal aliens from prosecution so that otherwise “law-abiding” illegal immigrants feel safe reporting those criminals back to the very same people protecting them in the first place! That, to the liberal mind, makes sense?
What Makhija and Winder fail to comprehend is that since many of the most dangerous illegal aliens often live amongst large immigrant communities themselves, their intended victims are thus more likely to originate from that population as well. Take for example Josue Osorio-Quino, a twice-deported illegal alien who fatally stabbed his girlfriend in front of her children on Christmas morning in 2019. “This case is a microcosm, an example of the consequences of being a sanctuary jurisdiction,” acting U.S. Attorney William M. McSwain said at the time. “Even one crime committed by an illegal alien is a crime that can be prevented.”
Unfortunately, Makhija and Winder are apparently oblivious to examples of preventable tragedies like this, of which there are many more. Instead, their biggest self-professed fear appears to be centered around fictitious traffic stops that “become de facto immigration checks.” Presumably they are referring to the “Task Force” sub-program model of Section 287(g) of the INA, which ICE says “serves as a force multiplier” by providing community police with limited immigration authority. This authority allows local traffic cops, for example, to inquire about someone’s immigration status upon any interaction with law enforcement where probable cause is shown.
Commissioners Makhija and Winder, however, believe this simple inquiry amounts to a federal crime, and somehow makes us “less safe.” But according to ICE’s own website, the 287(g) Program enhances the safety and security of our nation’s communities by “allowing ICE Enforcement and Removal Operations (ERO) to partner with state and local law enforcement agencies to identify and remove criminal aliens” who “undermine the safety of our nation’s communities and the integrity of U.S. immigration laws.”
Bucks County Sheriff Fred Harran agrees, stating that it’s been clear throughout his nearly four decades in law enforcement that community safety is best served through collaboration and strategic police deployment. The application to ICE, he said, “is a direct extension of this commitment — a deliberate step to enhance our ability to protect residents by working with federal authorities within the course of our duties.” Sheriff Harran’s department would be the first in the Philadelphia region to collaborate with ICE under the common-sense 287(g) initiative, assuming it survives legal challenges by the ACLU and others.
Makhija and Winder’s last justification for not signing a 287(g) agreement concerns “fiscal responsibility,” in which they claim, “This administration‘s mass deportation plan would cost nearly $1 trillion over the next decade,” with state and local governments bearing the cost of helping deploy deputized agents — although they fail to provide any evidence to back up this claim. They also argue that any money spent on immigration enforcement could be better spent funding other local priorities, such as expanding mental health services, improving aging infrastructure or strengthening public schools.
While the investment needs in these other public realms are certainly legitimate, the commissioners undermine their own fiscal argument by boasting that ”we’ve committed $10 million to enhance community centers serving Latino and Asian American and Pacific Islander residents in Norristown and North Wales.” Surely this money could also have been better spent funding those very same critical priorities they cited for not signing a 287(g) agreement. They are also apparently unaware that LEAs which participate in the 287(g) program receive training at the expense of ICE (as related to their prospective immigration enforcement duties), further undermining their argument.
Makhija and Winder conclude their article by stating that “In Montgomery County, we’re committed to upholding the rule of law while protecting the rights of all residents.” But by failing to distinguish between “legal” vs. “illegal” residents here, and granting illegals taxpayer funded services they aren’t entitled to, Makhija and Winder are actually violating the “rule of law” they swore to uphold. And by not signing a 287(g) agreement with ICE, they are jeopardizing Montgomery County residents’ right to safety by shielding potentially dangerous fugitives from deportation as a result of the commissioners’ unwillingness to partner with ICE to enforce existing immigration law.
Of course, Makhija and Winder aren’t concerned about the potentially negative ramifications of their actions, as they enjoy qualified immunity which protects government officials from civil lawsuits while acting in their official capacity. So victims of illegal immigrant crime have no legal recourse to sue people like Makhija and Winder when a preventable tragedy occurs precipitated by their blatantly misguided policies.
For the public safety’s sake then, it would be helpful if both Neil Makhija and Jamila Winder understand this simple fact: all illegal aliens are removable from the United States whether they have committed other crimes or not. They are, by definition, unlawfully present in the United States and are therefore subject to deportation solely because they lack authorization to be here.
Period. Full stop.
The open borders lobby, however, would have Americans believe that a major civil rights violation has occurred whenever anyone who hasn’t been convicted of an egregious criminal offense is deported. This is utter nonsense. The law simply says that the United States won’t tolerate trespassers within our own borders, regardless of how ‘law-abiding’ illegals may otherwise act once residing here.
To most Americans, that seems like common sense. Unfortunately, to Montgomery County Commissioners Neil Makhija and Jamila Winder, it apparently represents an insurmountable leap of logic. Hopefully it won’t take a preventable tragedy for them to come to alter course and come to their senses. If not, they should be held accountable for their reckless policy position.
Richard F. Kosich is a Grassroots Manager at Americans for Prosperity and chair of the Conshohocken Borough Republican Committee (CBRC). Opinions are his own.
