The Program

Section 287(g) of the Immigration and Nationality Act authorizes the Department of Homeland Security to deputize local law enforcement officers as immigration agents. The mechanism is a memorandum of agreement between ICE and a sheriff’s office. Not legislation. Not executive order. Not judicial decision. Paperwork.

In January 2025, 133 agencies had signed. By February 2026, according to the ACLU’s “Deputized for Disaster” report, that number was 1,412 — across forty states and territories, covering 77.2 million Americans. Thirty-two percent of the country. A tenfold expansion in thirteen months. No floor vote. No public comment period. No congressional debate of any kind.

Nine states have banned it.

The bifurcation is geographic. Whether your traffic stop remains a traffic stop or becomes an immigration proceeding depends on your county.

In Florida, the entire highway patrol — 1,800 state troopers — holds 287(g) credentials. Three hundred and twenty-five agreements across the state. Operation Tidal Wave, launched in April 2025 as a joint DHS-Florida initiative, produced over 10,400 arrests by January 2026. Immigration checkpoints on the only highway into the Keys. A trooper targeting Hispanic drivers during routine stops. ICE and FHP targeting landscape workers in Broward County. Governor DeSantis announced the arrest milestone from what he called a “deportation depot.”

In Maine, a law adopted in January 2026 bars any state or local agency from entering a 287(g) agreement. In Maryland, Governor Wes Moore signed legislation on February 17 terminating nine existing agreements held by sheriff’s offices. The state public defender’s data showed that two-thirds of the 218 people those offices transferred to ICE between January and October 2025 had no convictions. In New Mexico, HB 9 banned 287(g) and eliminated three detention facilities outright.

Same federal immigration statute. Two enforcement regimes. The variable is the address.

Both sides are escalating.

Idaho’s HB 659, passed by the state House on March 6 by a vote of 41-27, would require every city and county law enforcement agency in the state to sign a 287(g) agreement with ICE. The first state to mandate participation. Emergency clause. Effective July 1. The Idaho Association of County Sheriffs opposed it — not on principle, on funding. Representative Lori McCann called it an “unfunded mandate.”

Senator Lindsey Graham’s End Sanctuary Cities Act (S. 3805, introduced February 9) approaches from the federal side. Criminal penalties for state and local officials who “impede, inhibit, or stymie” federal immigration enforcement. Up to five years’ imprisonment. If the person released commits a violent felony: five to ten. Complete cutoff of all federal grants for non-compliant jurisdictions. Graham: “The end is near for the lawlessness and fraud enabled by sanctuary cities.”

A Maryland sheriff who complies with Governor Moore’s ban would, under S. 3805, face federal criminal prosecution for following Maryland law.

The bill has a one percent chance of enactment. A floor vote was attempted and blocked by Democrats. No state or local official has ever been successfully prosecuted for complying with a sanctuary statute. The Brennan Center’s analysis is direct: criminalizing non-participation is unconstitutional commandeering. Printz v. United States (1997) settled the question. Congress cannot conscript state law enforcement into federal programs.

Graham knows this. The bill is not designed to pass. It is designed to signal that the federal government regards the nine state bans as an obstacle to be overcome, not a democratic choice to be respected.

But the bill’s failure doesn’t matter, because the money already succeeded.

On September 2, 2025, DHS announced a reimbursement program for 287(g) partner agencies: full salary, benefits, and up to twenty-five percent overtime for trained officers. Plus quarterly performance bonuses calibrated to the percentage of ICE-flagged individuals successfully located. Ninety to one hundred percent: $1,000 per officer. Eighty to eighty-nine: $750. Seventy to seventy-nine: $500. The bonuses go to the agency, not the officer. The distinction is administrative. The incentive is structural.

This is more consequential than any bill Graham will introduce. Graham’s approach — mandate participation, criminalize refusal — runs directly into Printz. The reimbursement program avoids the collision entirely. It doesn’t mandate. It pays. Voluntariness is preserved in legal form while it evaporates in fiscal practice.

An agency that signs a 287(g) agreement receives federal funding for positions that would not otherwise exist. Those positions get staffed. Officers get hired. The paychecks arrive from DHS. Three quarters later, the agency has three quarters’ worth of institutional dependency. Withdrawing from 287(g) doesn’t just end immigration cooperation. It eliminates the funding for positions already filled. It means layoffs. The program perpetuates through payroll, not ideology. An agency that took the money cannot easily return it without firing the officers it hired with it.

You can challenge a federal mandate. The Supreme Court did, in Printz. You cannot easily challenge a federal financial incentive, because the agency chose to accept it. The coercion is real. The voluntariness is formal. And formal voluntariness is all the anti-commandeering doctrine requires.

Here is what 287(g) converts. A local police officer — hired by the county, trained by the state, accountable to the sheriff, who is accountable to county voters — becomes a federal immigration enforcement officer through the mechanism of a memorandum. The officer’s jurisdiction expands. Their accountability does not. The county voter elected a sheriff. They did not elect ICE. The 287(g) agreement gives their sheriff ICE’s authority without giving the voters ICE’s oversight structure, such as it is.

This conversion happened 1,079 times in thirteen months. The nine state bans — California, Connecticut, Delaware, Illinois, Oregon, Washington from before; Maine, New Mexico, and Maryland in 2026 — are an attempt to preserve the distinction between local policing and federal enforcement. Minnesota and New York have pending legislation. The bans cover roughly 100 million Americans.

The remaining 230 million live in states where the conversion is available. Where a memorandum of agreement, a training course, and a DHS reimbursement check can transform the officer who patrols your street into the officer who checks your immigration status during a traffic stop. Where the objection to the mandate — McCann’s “unfunded mandate” — has already been answered by the funding.

Idaho’s sheriffs didn’t object to enforcing immigration law. They objected to paying for it. DHS offered to pay. The mandate and the money arrive together, and the mandate is the redundant one.

Sources