Sanctuary Cities/Counties and Trump’s Executive Order

UPDATE ON SANCTUARY CITY LITIGATION – MARCH 31, 2017

On March 31, 2017 Lisa Sorbonne,  Executive Director of the State & Local Legal Center updated local governments on lawsuits involving  Sanctuary Jurisdictions Executive Order.

“There are two possible outcomes of the lawsuits, which challenge the Executive Order: The court does or doesn’t issue a nationwide injunction. If the court does issue an injunction it would only be temporary until the court could hear the case on the merits. A temporary injunction is like the court say “at a glance it looks like this violates the law.” It is likely the Trump administration will appeal the granting of a temporary injunction to the Ninth Circuit.

The Trump administration’s basic argument for why no injunction should be granted is that the government hasn’t taken anyone’s money away or threatened to take any specific jurisdictions money way (yet). The administration does not defend the constitutionality/legality of the executive order.”

Below is her  article, which will be out of date as soon as the court rules, which is anticipated to be 2 weeks at the longest.

ARTICLE

“Five days after assuming office President Trump signed an executive order threatening to take away federal funding from so-called sanctuary jurisdictions. The executive order leaves it to the Secretary of Homeland Security to define “sanctuary jurisdictions.” Unsurprisingly, a number of cities and counties have sued the President over this executive order including San Francisco, Santa Clara County, and Richmond, California, and Lawrence and Chelsea, Massachusetts.

By mid-April a court will likely grant or deny a preliminary injunction in the Santa Clara County case. At this point we know the legal allegations the cities and counties have made against the President, and the President has responded to the Santa Clara County and San Francisco lawsuits.

What arguments do the local governments make?

All of the complaints make different arguments and frame the legal issues slightly differently but below are the three main arguments.

Spending Clause

The U.S. Constitution’s Spending Clause allows Congress to place conditions on federal money local governments receive. The local governments argue that Spending Clause authority resides in Congress not in the President. Even if Congress had the authority to take away federal funding from sanctuary jurisdictions per the Spending Clause the President lacks the same authority as a matter of separate of powers.

The Supreme Court has ruled that conditioning the receipt of federal funds may not be coercive, the conditions must be stated unambiguously, and they must relate to the federal interest in the grant program. The local governments suing President Trump argue that these requirements are not met.

In NFIB v. Sibelius (2012), Chief Justice Roberts famously described the Affordable Care Act’s requirement to withhold all Medicaid funding if states refused to agree to the Medicaid expansion as a coercive “gun to the head.” In that case states stood to lose over 10 percent of their overall budget by not agreeing to the Medicaid expansion. Santa Clara County, for example, claims it will lose 15 percent of its budget if it loses all federal funding.

The Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds it must do so “unambiguously.” None of the federal funding local governments receive requires them to participate in enforcing federal immigration laws.

Likewise, the Supreme Court has held that conditions Congress place on federal grants must be “germane” or “related to” the federal interest in the grant program. The local governments argue enforcing federal immigration laws does not relate to federal interests in federal funding they receive for infrastructure, health care, education, etc.

Fourth and Tenth Amendments

The sanctuary jurisdictions executive order states that the attorney general may take “appropriate enforcement action” against any entity which has in effect a “statute, policy, or practice that prevents or hinders the enforcement of Federal law.” This language, the fact that the executive order reestablished Secure Communities and requires the Secretary of Homeland Security to publish a weekly list of jurisdictions that don’t honor Immigration and Customs Enforcement (ICE) detainers, has lead local governments to conclude that the executive order requires local governments to comply with ICE detainers.

In their lawsuits the local governments claim that complying with ICE detainers violates the Tenth and Fourth Amendments.

When someone is arrested ICE receives their fingerprints and may request through an ICE detainer that a local government hold the person so that ICE can pick them up and deport them. Numerous courts have held that complying with ICE detainers violates the Fourth Amendment because such detainers are rearrests not supported by a warrant.

Following the sanctuary jurisdictions executive order Miami-Dade County decided to comply with ICE detainers and was sued. A judge ruled that Miami-Dade County lacks the power under the Tenth Amendment, which reserves powers not delegated to the federal government to the state, to comply with warrantless ICE detainers. Enforcing federal immigration law is the sole responsibility of the federal government.

8 U.S.C. 1373

The sanctuary jurisdictions executive order requires local governments to comply with 8 U.S.C. 1373. This statute bars prohibitions on government entities from maintaining or sharing citizenship or immigration status information.

The local governments suing in this case note that 8 U.S.C. 1373 does not require them to collect information about immigration status. They do not collect this information and are therefore in compliance with 8 U.S.C. 1373 they argue.

San Francisco argues that it complies with 8 U.S.C. 1373 but that the statute violates the Tenth Amendment. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement where local governments cannot be required “to enact or administer a federal regulatory program.”

How has the government responded?

President Trump’s response to the Santa Clara County and San Francisco complaints should alleviate any fears that the President intends to take any money away from sanctuary jurisdictions any time soon. The administration’s response to the Santa Clara County complaint describe five steps which would have to occur before any local government will be deprived of federal funds (none of which have yet occurred):

(1) the Attorney General and the Secretary of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8 U.S.C. § 1373”; (2) the Secretary must identify any state or local governments that constitute “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the Attorney General must decide which federal funding sources are “necessary for law enforcement purposes”; (4) the Secretary and the Attorney General must then determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and the Attorney General must determine how to implement those actions “consistent with law.”

A few aspects of the administration’s response to the Santa Clara County and San Francisco complaints are noteworthy.

First, both responses avoid defending the constitutional claims; instead the administration argues that because no federal funding has been taken away from either local government the cases aren’t yet ready to be reviewed by a court.

Second, the administration disavows the notion that all federal funding can be taken away from sanctuary jurisdictions. More specifically, in the Santa Clara County complaint the administration argues that only jurisdictions that “willfully refuse to comply” with 8 U.S.C. 1373 become “not eligible to receive Federal grants.” But as Santa Clara County points out in its response, “it is telling that the Administration neither identifies a single grant that imposes that condition, nor addresses the numerous bills to do so that Congress considered and rejected.”

Finally, both Administration responses conspicuously avoid any acknowledgement that the executive order may require local governments to comply with warrantless ICE detainers.”

ORIGINAL POST BELOW BASED ON ANALYSIS AS OF FEBRUARY 7, 2017 

Executive Order Relating To Sanctuary Counties and Cities

On January 25, 2017 President Trump, issued an Executive Order (Order) intended to block cities and counties from engaging in certain practices that impede the federal government’s execution of the immigration laws of the United States. This Executive Order requires the Secretary of Homeland Security (Secretary) and all agencies   “…to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” States, counties and cities that do not comply with 8 U.S.C. 1373 or have a statue, policy, or practice that prevents or hinders the enforcement of Federal law (so-called sanctuary states, cities or counties) are threatened with the loss of federal funding.      The Order is intended to prohibit sanctuary states, counties and cities from engaging in practices that interfere with the federal governments execution of the immigration laws of the United States with respect to undocumented aliens.  For an  annotated copy of Trump’s  Order showing possible legal issues see Professor David A. Martin’s analysis.statue-of-liberty-1758290_960_720

The big stick approach in the Order (loss of federal money) will encourage local government to work with immigration officials and discourage others from providing sanctuary to undocumented aliens. While the federal government has the big stick it is not walking quietly. Consider, that the Order authorizes the employment of an additional 10,000 immigration officers for the enforcement of immigration laws and establishes a framework for involvement voluntarily or by coercion of local jurisdictions in the enforcement of immigration laws. While the Order establishes a framework for agreements with local jurisdictions, it also has coercive provisions that could be used to force local government to house prisoners and execute detention policies that exceed the normal period of detention for the crime that led to the arrest.

Questions abound to whether or not local government will be fully reimbursed for costs associated with the detention of prisoners.  Considering that many jails are  already crowded and that law enforcement is inadequately funded any additional burdens with or without compensation in enforcing the Order could be a major issue. In addition, if local jurisdictions are not willing to engage in voluntary actions there could be a serious states rights question if the federal government tries to  commandeer local and state law enforcement to act as an arm of the federal government in enforcing immigration laws.

How does the Order work?

The basic concept is pretty simple. When local law enforcement arrests someone, 8 U. S. C. 1373 mandates that the arresting agency determine the citizenship or immigrant status of the person who has been arrested by providing certain information to the FBI. The FBI than sends the inmates information to Immigration Customs Enforcement (ICE) for processing. If ICE determines that the inmate is undocumented, it submits a detainer request to the local jurisdiction that has detained the person. (For an excellent discussion of this process: See the Washington Post, updated January 25, 2017)

Since there are no sanctuary counties or cities in Missouri, it may be that the controversy over the Order will play out in other parts of the country. Because the Order authorizes the Secretary to enter into agreements with local jurisdictions to provide immigration services it may be that the impact of the Order in Missouri will primarily be working out the administrative details by agreement, although additional burdens may be placed on local government without the assurance of full reimbursement.

Concerns   

The rollout of this Order has  generated a lot controversy, with some jurisdictions stating that they will defy the Order, leading to litigation over its validity. In addition, citizens who are opposed to mass deportation of their neighbors may engage in passive or nonviolent resistance, which could potentially lead to explosive conflicts. It is not hard to imagine a pregnant mother with three small children being arrested and led away from her children for deportation in front of a large sympatric crowd of neighbors and friends.What does this portend?

The closest parallel in American history   to Trump’s  Executive Order is the pre-Civil War Fugitive Slave Act. Abolitionist and others created the Underground Railroad to fight the injustice created by the Fugitive Slave Act; they engaged in outright resistance to returning slaves by running off bounty hunters as well as other forms of open hostility to the efforts of slave owners to enforce the Fugitive Slave Act.

Helping another

Local government officials need to be aware of their duties under the  Order.  Pursuant 8 U. S. C. 1373, reporting of  persons arrested and detained is required.  If an order is issued to detain the prisoner  you  should be prepared to respond to the order.  This could put a substantial burden on local government agencies  particularly those  that run jails.  If you do not have an agreement in place some thought should be given to working out details in advance,  in order to avoid a misunderstanding.

Howard Wright© 2017

 

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