HR-8984-119
Referred to the Subcommittee on Oversight, Investigations, and Accountability.
Sponsored by Joseph Morelle (D-NY)
What it does
This bill would prohibit the Department of Homeland Security from constructing, acquiring, renovating, or operating any new CBP or ICE processing site or detention center without first completing three steps: (1) publishing a Federal Register notice open for at least 30 days of public comment, including an economic impact analysis and engineering review; (2) entering into a signed, written agreement with the governor and appropriate local elected officials of the jurisdiction where the facility would be located; and (3) waiting at least 30 days after submitting a report to six designated congressional committees. All three requirements must be satisfied before any real property interest may be acquired for such a facility.
Who benefits
Residents of communities where new detention facilities might be sited, who would gain a formal voice in the process. State governors and local elected officials (mayors, county executives, city and county councils), who would gain effective veto power over new facilities. Environmental advocates, who would benefit from the required environmental compliance review. Local governments concerned about infrastructure strain, who would receive economic impact and engineering analyses. Congressional oversight committees, which would receive advance notice and documentation. Civil liberties and immigrant advocacy organizations that oppose expansion of detention capacity.
Who is hurt
DHS, CBP, and ICE, which would face significant procedural delays and potential permanent blocks on facility expansion. The federal government's ability to rapidly scale detention capacity in response to surges in border crossings or enforcement priorities would be constrained. Detained individuals awaiting processing who might otherwise be held in newer or renovated facilities. Private detention contractors who depend on federal contracts for new or expanded facilities. States or localities that might want a facility but are blocked by a single level of government (e.g., a willing city blocked by a governor, or vice versa, since both must agree). Taxpayers if delays increase costs of detention operations.
Supporters argue
Supporters argue that federal agencies have repeatedly sited large detention facilities in communities without meaningful local input, creating infrastructure burdens — including waste, water, and electrical demands — that fall on local governments with no say in the decision. They contend that requiring a signed agreement with elected local officials is consistent with cooperative federalism principles and that the 30-day public comment and congressional notice periods are modest procedural safeguards, not outright prohibitions. Supporters also argue that the economic impact and engineering review requirements ensure communities receive the factual information needed to make informed decisions about facilities that will directly affect them.
Opponents argue
Opponents argue that immigration enforcement is an exclusively federal function under the Naturalization Clause and the Supremacy Clause, and that requiring a signed agreement with state and local officials effectively gives those governments a veto over federal operations — a power the Constitution does not grant them. They contend that a single uncooperative governor or local council could indefinitely block the federal government from building any new detention facility anywhere in their jurisdiction, potentially paralyzing enforcement operations during border surges. Opponents further argue that Arizona v. United States (2012) established federal supremacy in immigration matters precisely to prevent state and local governments from obstructing federal immigration policy, and that this bill inverts that principle.
Constitutional context
The Supremacy Clause (Art. VI, cl. 2) and the Naturalization Clause (Art. I, §8, cl. 4) vest immigration authority in the federal government. Arizona v. United States (2012) affirmed that federal law preempts state interference with federal immigration operations. The bill's requirement that DHS obtain a signed agreement from state and local officials before operating a facility raises a potential Supremacy Clause question: whether Congress can condition federal agency action on state and local consent in a domain where federal authority is plenary. The Tenth Amendment's anti-commandeering doctrine, as developed in Murphy v. NCAA (2018), cuts in a different direction — it limits federal power to compel states, but here Congress is restricting its own agency, not commanding states.
Checks and balances
Congress would gain oversight authority through mandatory advance reporting requirements, while the Executive Branch (DHS/CBP/ICE) would lose unilateral discretion to site and operate new detention facilities, with state governors and local legislative bodies gaining effective approval authority over new federal facilities in their jurisdictions.
Historical precedent
No directly analogous federal statute requiring state and local government consent before federal immigration detention facility construction has been enacted, though environmental review requirements under NEPA impose somewhat similar public notice and comment obligations on federal construction projects generally.