Section 240D authorizes state and local law enforcement to "arrest, detain, or transfer to federal custody an alien for purposes of assisting in the enforcement of criminal provisions of the immigration laws." But, according to Royce and Kris Kobach (a professor at the University of Missouri law school in Kansas City, Mo., who served in the Justice Department as chief adviser to former Attorney General John Ashcroft on immigration issues), this language narrows the existing power of state and local police, who may currently detain aliens for both criminal and civil violations of immigration law.
"Specifically," says Royce, "the legislation would prevent state and local law enforcement from having the opportunity to apprehend a potential terrorist who had overstayed his visa."
"If it were enacted, the Senate bill would prevent state and local police from making arrests for civil violations of immigration law -- which are precisely the sorts of violations that five of the 9/11 terrorists committed," Kobach told me. "The Senate bill would tie the hands of state and local police, even though they are the law enforcement officers most likely to come into contact with terrorists operating on U.S. soil."
In a recent article for the Albany Law Review, Kobach detailed how four al Qaeda hijackers -- including three of the four suspected pilots -- were stopped by local law enforcement for traffic violations and were let go, even though they could have been arrested for civil violations of immigration law.
Not everyone agrees with Kobach's interpretation that Section 240D denies local authorities the power to arrest aliens for civil violations of immigration law. A Senate Judiciary Committee aide told me: "The committee provided a statutory basis for state and local authority on criminal violations. The committee did not address the issue of civil violations, thus maintaining current law."
Those who wish to defend the Senate bill will be given the chance to do so on a national stage. Royce is taking his subcommittee to the border in California and Texas on July 5 and 7 to hold hearings on what the Senate has done. "I want the American public to understand something that I think many of the senators did not understand," said Royce, "and that is what is really in the Senate bill and what would the consequences of enactment be for border security."