A battle over detention reforms and powers presages national debate.

One aspect of the debate over illegal immigration came into stark relief this week as, on the one hand, Homeland Security Secretary Janet Napolitano and Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton introduced new flexibility into the holding of illegal alien detainees and, on the other hand, Sheriff Joe Arpaio, who bills himself as "America's toughest sheriff" and a foe of illegal aliens, bitterly complained that he was losing the flexibility to enforce the law as he sees fit and vowed to take counter action. 

On Tuesday, Oct. 6, Napolitano and Morton introduced seven new reforms on alien detention designed for "prioritizing risk, strengthening oversight and increasing efficiency in our immigration detention system,” as Morton put it. Though the reforms are comprehensive, covering both detainee care and ICE policy, the reform that drew the most notice was that of alternatives to detention (ATD). Under the proposed reforms ICE will be allowed to house detainees in facilities other than prisons or dedicated detention facilities based on their risk of flight or threat to the public. They could be put up in hotels or similar facilities if ICE authorities determine them to be appropriate. (For full coverage, see yesterday's News Analysis, "Detention Report Calls for Jailing Fewer Aliens .")

This reform and others must still be approved by Congress, where hardline crtiics will no doubt mount emotional opposition to what will be portrayed as a weakening of enforcement measures by the Obama administration.

What's in store could be seen immediately in Arizona where Arpaio, who embodies the "get tough" school of immigration enforcement, went public with his objections to the loss of some of his policing powers. Arpaio had been working with ICE, which gave him and his deputies the power to to investigate and detain people they suspected might be living or working in the United States illegally. On the same day that Napolitano and Morton presented their proposed reforms, Arpaio was presented with a new contract by ICE officials that restricted his enforcement powers to jail checks only.

That would remove Arpaio's most high profile tool: The use of highly public mass dragnets rounding up people who are then checked for immigration violations. Arpaio also used the enforcement of minor laws--for example, driving with a broken tail light--to detain suspects and check their immigration status. Arpaio was also known for his harsh detention policies: two meals a day, distinctive prison uniforms, housing in tents rather than fixed facilities and a variety of other punishments meant to deter others and prevent recurrences.

But immediately after signing the new contract with ICE, Arpaio boasted publicly that he "fooled" ICE by signing the new agreement: Instead he will rely on a state anti-human trafficking law to continue to make arrests and what is more, he said, the state law gives him more lattitude of action. In the past he would turn over detainees to ICE; now, if ICE refuses to take them he will drive them to the border and dump them there.

The latest battle continues a feud between Arpaio and Napolitano that continued to rage from the time that Napolitano served as governor of Arizona. (Homeland Security Today covered that conflict in the article, "Arizona Under Napolitano " in the January 2009 issue.)

In a larger sense, this conflict embodies America's immigration debate: Should the United States respond to the illegal migration problem through tough enforcement based on a detailed reading of the law (Arpaio) or a more flexible response based on more humanitarian and administrative concerns (Napolitano)? There are other issues at stake too; for example, the standing and precedence of  federal versus local legal authorities in response to a national problem. Napolitano is trying to impose national standards for detainee treatment, Arpaio and others who agree with him think those are inadequate.

Arpaio is not giving up and neither is Napolitano--nor are illegal aliens. This is just the latest chapter in a long-running story and new chapters will be arriving soon.