North Carolina Legislature Passes ICE Detainer Bill – Veto Likely
FAIR Take | July 2022
The North Carolina General Assembly passed a bill to require all state and local law enforcement to honor immigration detainers. This legislation was similar to the bill passed in 2019. Detainers are official requests by Immigration and Customs Enforcement (ICE) to hold illegal aliens for up to 48 hours so ICE so they can be removed. Despite the bill’s passage, it faces an uphill battle to become law. It is likely that Governor Roy Cooper (D) will veto the legislation as he did previously. If he does, it will be difficult for the legislature to override the veto.
Since 2019 the sheriffs of North Carolina’s five most populous counties have been ignoring immigration detainers and releasing dangerous criminal aliens back into North Carolina communities. The detainer bills have sought to end this reckless practice. In 2019, when the previous bill was vetoed, House Speaker Tim Moore (R-Cleveland) noted that the North Carolina Sheriffs’ Association strongly supported the bill, which they described as “provid[ing] an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities.”
Senate Bill (SB) 101 was introduced on February 15, 2021 by Senators Chuck Edwards (R-Henderson), Danny Britt (R-Lumberton) and Norman Sanderson (R-Pamlico). It moved rapidly through multiple committees and then passed the Senate 27-20 on March 11, 2021.
The bill was sent to the House of Representatives where it stalled for a year. On June 23, 2022, the bill received a hearing and passed favorably out of House Judiciary Committee 4. On June 30, it passed the Rules Committee and was sent to House floor where it passed by a 65-47 vote.
Since the House had amended the Senate bill, it was returned to the Senate for concurrence. The Senate concurred with the House’s amendments and passed the bill on July 1 along straight party lines and immediately sent it to the governor.
SB 101 does the following:
- Requires that anyone in custody who has an immigration detainer be brought before a state judicial official, and if the official determines the person is the same person named in the detainer, that they be held for 48 hours or until picked up by ICE, whichever comes first;
- Requires local jail officials to actively query ICE for immigration status and outstanding detainers of anyone booked for homicide, sex crimes, kidnapping, human trafficking, gang crimes or felony drug crimes;
- Requires local jail officials to annually report to the legislature on compliance; and
- Makes law enforcement immune from civil and criminal liability for compliance.
The bill’s lead sponsor, Sen. Edwards, acknowledged the legislation may cost counties between $137 and $300 to hold someone on a detainer. Despite the costs, he urged the bill’s passage saying, “‘Would you want to stand in front of a family member of a victim of a crime and tell them the reason that they were subjected to that crime could have been because somebody wanted to save, maybe, $137?’ … Quite frankly, there will be some cost involved. … but I think it’s incidental to the potential danger in our communities.”
Even though SB 101 differs slightly from the 2019 bill, it has not significantly changed. It is likely, therefore, that Gov. Cooper will once again veto this legislation. It is possible, however, he could let the bill become law by not taking any action within the ten days from the date of presentation (July 11).
If Gov. Cooper vetoes SB 101, under the North Carolina Constitution a three-fifths supermajority vote in each chamber would be required for an override. This amounts to 30 votes in the 50-member Senate and 72 votes in the 120-member House. Republicans control the Senate 28-22 and the House 69-51. Therefore, for a veto override to succeed a small number of Democrats would have to join all the Republicans in each chamber. During an election year, it is unlikely that Democrats will vote to override the governor.
The North Carolina legislature has adjourned but is scheduled to reconvene on July 26. They could consider a veto override at that time if needed.