Committee weighs S.148 noncooperation proposal and options to renegotiate CBP MOU amid capacity and legal concerns

Before the committee on April 18, legislative counsel presented S.148 as introduced, a bill that would add a new section to Title 20 (proposed section .372) prohibiting law‑enforcement agencies, officers, and persons acting on their behalf from knowingly providing information or expending state resources to assist federal immigration investigations or proceedings.

Legislative counsel said the bill defines "federal immigration authorities" to include the Department of Homeland Security, Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP), and explicitly extends noncooperation requirements to situations covered by Vermont statutes referenced in the transcript (12 VSA 7306 and 18 VSA 4254, cited in discussion). Counsel summarized the operative provision: "no law enforcement agency, officer or any other person acting on behalf of a law enforcement agency may knowingly provide any information or expend or use time, money, facilities, property, equipment, personnel, or other resources in furtherance of any civil or criminal federal immigration investigation or proceeding."

Counsel emphasized statutory and constitutional tensions. The transcript records counsel noting two federal statutes—identified in discussion as "8 U.S.C. 1373 and 1644"—that federalize information‑sharing in some contexts and that the bill occupies a "constitutional gray area" where anti‑commandeering (Tenth Amendment) principles and federal requirements may conflict. Counsel said most litigation on related issues has focused on withholding federal grants rather than the core commandeering question; the committee heard that courts have yet to resolve several open issues.

Members pressed for practical implications and enforcement mechanisms. Counsel said S.148 as drafted includes carve‑outs: the prohibition would not apply to responses to a judicial warrant issued in good faith or an investigation of a criminal offense unrelated to federal immigration enforcement. Counsel also said the bill as drafted does not create a direct criminal penalty but would operate through administrative, professional, or agency discipline and could lead to adjudication under existing administrative processes.

Committee discussion then shifted to an existing memorandum of understanding (MOU) between the Vermont Department of Corrections (DOC) and U.S. Customs and Border Protection that governs housing of federal detainees. Counsel summarized the MOU: it is a one‑year agreement (started in August of the prior year, transcript) under which the state provides custody, housing, and care consistent with state law while CBP/CBP‑agents retain certain operational responsibilities; the MOU requires 120‑days' notice for suspension or termination and allows access to records with 24 hours' notice for three years. The transcript records a DOC reimbursement rate of $180 per detainee per night under the MOU; committee members said the actual cost to house detainees is approximately $299 per night, and a committee speaker said jail population was at or above 130% capacity.

Several senators proposed a legislative pathway to limit the scope of any MOU: counsel and members discussed directing DOC to renegotiate terms so the state would accept federal detainees only if the detainee was arrested in Vermont, had a hearing pending in Vermont, or was a Vermont resident. Counsel cautioned that while the legislature can set laws that govern what state resources will be spent, the federal government must agree to any change in the MOU; members discussed separation‑of‑powers and whether a statute could require the executive branch only to expend state resources under specified conditions.

Committee members also requested updated guidance from the attorney general’s office and a review of Act 5 (2017), which had previously limited some information sharing, to better understand precedents. Counsel said some states have similar statutes but most statutes incorporate a qualifier like "except as required by law;" S.148 as drafted contains narrower, enumerated exceptions rather than a general "except as required by law" clause.

No formal vote on S.148 or on any MOU changes was recorded in the transcript. Senators directed staff to draft guideline language for consideration that would (in members’ phrasing) allow the state to refuse to house detainees arriving from other federal districts while preserving the ability to detain Vermont residents or those arrested within the state. Committee members flagged budgetary implications and requested DOC and attorney general testimony for follow‑up sessions.