A state lawmaker wants Attorney General Kris Mayes to investigate cities, including Tucson, that refuse to allow Immigration and Customs Enforcement to operate on their property, which he contends is illegal.
Prescott Republican Rep. Quang Nguyen acknowledges that the federal government is barred from compelling states "to enact or administer a federal regulatory program.''
But Nguyen points out there is also a state law barring cities from adopting policies that "limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.'' That preempts cities' authority to ban ICE from using municipal property, even as a staging area, he wrote in a letter to the Democratic attorney general.
The request comes days after the Phoenix City Council voted 8-1 to ban ICE from using city-owned land to stage operations or process detainees unless it first gets the city's permission.
Phoenix is not alone. Its action followed a similar, unanimous vote by the all-Democratic Tucson City Council.
Nguyen's letter to Mayes is more than just a complaint. It begins the formal process that allows any legislator to force the attorney general to investigate potentially illegal actions by a local government.
If Mayes were to conclude that a policy runs afoul of state law she could order a city to rescind it or, at the very least, seek a ruling from the Arizona Supreme Court. And if her finding of illegality is upheld, the Arizona law requires the state treasurer to withhold some state aid unless and until the offending ordinance is repealed.
Both ordinances follow a series of decisions by ICE to go into cities in efforts to sweep up people they say are not legally entitled to be here, often using city property to stage their raids. That has resulted in demonstrations against what the agency is doing, as well as reports of agents picking up and holding some who are U.S. citizens or otherwise legally present.
Rep. Quang Nguyen
Tucson Mayor Regina Romero, discussing the proposal before it was approved, said residents and the immigrant community "deserve certainty that our city-owned properties and resources will be used'' to deliver quality of life services, not a place where they can be "confronted or attacked or harassed'' by federal agents.
Nguyen, in his complaint to Mayes, said such ordinances do not just reflect "passive non-cooperation'' with ICE.
"Rather, it affirmatively restricts the use of city property for core enforcement functions such as staging, processing, and operational coordination,'' he wrote, unless ICE first gets city approval.
In both Phoenix and Tucson, such approval would have to come from the city manager.
Nguyen said that's not acceptable.
"This policy conditions federal and intergovernmental law enforcement activity on local approval,'' he wrote to Mayes. Nguyen said it would make the city manager a gatekeeper, controlling the manner, timing, and feasibility of enforcement operations.
"This discretionary approval structure creates a substantial risk that enforcement will be delayed, impeded, or denied altogether,'' Nguyen wrote. And, he said, any policy that withholds access runs afoul of the state law that bars cities from limiting enforcement of federal immigration laws.
On the issue of federal preemption, he told Mayes, "While local governments are not required to affirmatively assist federal law enforcement, they may not adopt measures that interfere with or stand as an obstacle against the execution of federal law. By restricting access to city-controlled property through discretionary local approval, the regulation risks crossing the line from permissible non-cooperation into impermissible interference with federal enforcement operations.''
Tucson intends to dispute Nguyen's contention that its ordinance is illegal.
"The policy was crafted and adopted in accordance with state and federal law,'' said City Attorney Roy Lusk.
That is in line with views expressed by Romero in a memo she wrote before the city adopted the ordinance.
"While immigration enforcement is a federal responsibility, municipalities retain authority over how city property, facilities, and staff are used,'' she said.
The ordinance also directs Tucson city officials to erect signs to tell federal enforcement officials they cannot use property "for civil law enforcement or civil immigration enforcement.''
The emphasis on civil is important. The Tucson policy says there is no need for federal agents to request permission "for the service of a lawful judicial warrant or where exigent circumstances objectively exist.''
Tucson City Council member Miranda Schubert said after the council vote that enacting the ordinance was the right thing to do.
"This action is important because it shows we're literally doing everything we can on the City Council to, again, ensure that people feel safe, that they feel welcome in public spaces,'' she said.
When the issue was first discussed in January, several council members expressed strong feelings about ICE and city cooperation.
Council member Paul Cunningham said he feels "less safe'' when he hears about ICE operations in Tucson.
"It's important for us to send a message, and let them know (that) not only are we taking remedial action because our people don't feel safe with them running around like a bunch of Gestapo goons in our community,'' he said.
Under state law, Mayes has 30 days from the time she believes she has a complete complaint to issue a ruling. If she decides the ordinance violates state law, the city can seek court review.
