Dear Knox County Commissioners:
As explained in a separate letter, the 287(g) agreement between the Knox County Sheriff and U.S. Immigrations and Customs Enforcement (“ICE”) is unlawful because the Sheriff signed it without the approval of the Knox County Commission. Tennessee Code Annotated section 50-1-101(a), which was enacted in 2007, requires “approval by the governing legislative body” of the county before a sheriff “may enter into a written agreement” with ICE “concerning the enforcement of federal immigration laws.” In an April 16, 2021 Memorandum and in a subsequent public hearing, the Knox County Law Director’s Office advanced several arguments seeking to convince this Commission that the 287(g) agreement is valid despite the Sheriff’s noncompliance with § 50-1-101(a). As we will explain, the Law Director’s arguments are entirely without merit.
According to the Law Director, a separate Tennessee statute enacted in 2018, Tenn. Code Ann. § 7-68-105, allows law enforcement entities to enter into 287(g) agreements with ICE. The Law Director claims that § 7-68-105 is “in conflict” with § 50-1-101(a) and “repeals by implication” its requirement of county commission approval for 287(g) agreements.
This contention by the Law Director is flawed in multiple respects. Most fundamentally, § 7-68-105 does not say that law enforcement entities may enter into 287(g) agreements with ICE. It says that law enforcement entities may “communicate with” federal officials regarding immigration matters and may “negotiate the terms of” 287(g) agreements. But § 7-68-105 says nothing about a sheriff unilaterally signing, executing, or entering into 287(g) agreements. As a result, that statute does not relieve the Sheriff of his responsibility to obtain the approval of the County Commission before signing a 287(g) agreement as required by § 50-1-101(a).
In addition, the Law Director fails to recognize that “[r]epeals by implication … are disfavored in Tennessee, and therefore ‘will be recognized only when no fair and reasonable construction will permit the statutes to stand together.’” Hayes v. Gibson Cty., 288 S.W.3d 334, 337-38 (Tenn. 2009) (quoting Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995)). “Consequently, a court will hold a later statute to have repealed an earlier statute by implication only when the conflict between the statutes is irreconcilable.” Id.
Here, there is no conflict between the two statues, much less an irreconcilable one. A sheriff may negotiate the terms of a 287(g) agreement, as permitted by § 7-68-105, and then may obtain the approval of the county commission before signing the agreement, as required by § 50-1-101(a). Because this is a fair and reasonable construction that allows these statutes to stand together, there is no basis to apply the disfavored doctrine of repeal by implication. It is therefore evident that § 50-1-101(a) remains in effect and continues to require the approval of a county commission before a sheriff may sign a 287(g) agreement.
The Law Director’s next argument is that the Supremacy Clause of the U.S. Constitution preempts any law such as § 50-1-101(a) that imposes a requirement for how a law enforcement agency may enter into a 287(g) agreement. According to the Law Director, this is so because “federal law has no such requirement.”
The main defect in this argument is that federal law has precisely such a requirement. Specifically, section 287(g) of the Immigration and Nationality Act—the same federal statute that allows 287(g) agreements—provides that law enforcement agencies must act in a manner that is “consistent with State and local law” with respect to § 287(g) agreements. 8 U.S.C. § 1357(g)(1). In other words, far from preempting state law, federal law mandates that law enforcement agencies must comply with state laws such as § 50-1-101(a). For this reason, courts have rejected similar preemption claims. See, e.g., Cty. of Ocean v. Grewal, 475 F. Supp. 3d 355, 383 (D.N.J. 2020) (“Plaintiffs’ argument … requires little analysis. The INA itself contemplates that State law governs whether a subdivision can cooperate with enforcement of federal immigration law through a 287(g) agreement.”); see also City of El Cenizo, Tex. v. Texas, 890 F.3d 164, 178 (5th Cir. 2018) (“Federal law does not suggest the intent—let alone a ‘clear and manifest’ one—to prevent states from regulating whether their localities cooperate in immigration enforcement.”).
In sum, none of the Law Director’s arguments legitimately calls into question the validity of § 50-1-101(a) or the reality that the Sheriff unlawfully signed the 287(g) agreement without Commission approval. This Commission should follow the law and protect Knox County taxpayers against potential liability by putting an end to the unlawful 287(g) agreement.