By: Bradley Jarrett
During his campaign, President Trump vowed to dismantle so called “sanctuary cities” if elected. He promised to cut off all federal funding to these cities and to “work with Congress to pass legislation to protect those jurisdictions that do assist federal authorities.” In his first week in office, President Trump issued an executive order, among a flurry of executive actions, directed at these “sanctuary jurisdictions.”
The order states, “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” 8 U.S.C. 1373 is the section of U.S. code that pertains to the sharing of citizenship or immigration status information between the Immigration Customs and Enforcement (ICE) and state, and local government officials.
The terms sanctuary city or sanctuary jurisdiction are of no legal significance. These are not legal terms of art and are not derived from statutory text. Sanctuary jurisdictions are simply those cities or counties that have laws or policies limiting the extent to which law enforcement will assist the federal government in enforcing immigration laws. Most notably, sanctuary jurisdictions refuse to cooperate with “ICE detainers.”
An ICE detainer, also referred to as an immigration detainer, is a request for local or state law enforcement to notify ICE 48 hours prior to releasing a “priority” alien from custody or a request to maintain custody of a “priority” or even a “non-priority” alien for a period of up to 48 hours beyond the time when he or she would have been released. “Priority” and “non-priority” are categories used by the Department of Homeland Security (DHS) to direct its apprehension, detention, and removal efforts under its Priority Enforcement Program (PEP). Under this program, ICE focuses the vast majority of its removal efforts on those aliens deemed to be threats to national security, border security, and public safety.
These detainers are simply requests for assistance and local law enforcement compliance is not mandatory because Immigration enforcement is solely within the purview of the federal government, and the federal government is prohibited from compelling states to enforce federal laws. The Supreme Court has ruled this practice, commonly referred to as “commandeering,” unconstitutional. Furthermore, multiple Circuit Courts and more recently a Federal District Court for the Eastern District of Illinois have held that warrantless immigration detainers exceed the federal government’s authority.
The federal government cannot force states and local jurisdictions to comply with ICE detainers; however, under Section 287(g) of the Immigration and Nationality Act, the federal government can enter agreements with state and local law enforcement agencies, permitting these agencies to carry out immigration enforcement functions. In return, the federal government must provide the agreeing agencies with training and funding.
So, how will President Trump attempt to “dismantle” these sanctuary jurisdictions? First, the Justice Department could sue sanctuary jurisdictions, but these attempts will likely fail. As Bill O. Hing, a professor at the University of San Francisco School of Law and renowned immigration law scholar, explains, “[t]he constitutionality of sanctuary policies is clear. Unlike anti-immigrant subfederal laws intended to regulate immigration, sanctuary policies, community policing, and confidentiality approaches are not about regulating the admission of immigrants. Sanctuary policies are about public safety and decisions on how to spend public funds and establish priorities, and therefore are not preempted.” Thus, unlikely to succeed in the courtroom, President Trump can try to hit sanctuary jurisdictions where it hurts the most—the wallet.
Many state and local governments rely heavily on grants from the federal government. Mississippi receives the most federal grant money as a percentage of its annual revenue at 49 – percent. However, President Trump cannot “block all funding” to sanctuary cities as he has threatened previously. An entire line of U.S. Supreme Court precedent outlines the limitations on Congress’s ability to use its spending power to influence states in areas of the law normally reserved to the states. In short, Congress may attach conditions to the receipt of federal grants, so long as the condition is related to the federal interest in particular national projects or programs, and not coercive. For example, Congress cannot enact a statute that would deny any federal Medicare funding to sanctuary jurisdictions that fail to comply with ICE detainers. This would be coercive, given the amount of funding and its lack of relevance to the subject of the grant.
Some Congressional grant programs, such as DOJ’s State Criminal Alien Assistance Program (SCAAP), give the heads of the requisite agencies broad discretion in the disbursement of funds. In 2015, the SCAAP distributed $165 to local agencies that detained undocumented immigrants almost exclusively at the discretion of the U.S. Attorney General. President Trump and Attorney General Sessions could deny sanctuary cities funding provided by the SCAAP and other grants of a similar, limited scope. Denying funding from SCAAP and similar grants will have a limited impact on sanctuary cities because these grants make up a small fraction federal grant money available to the states.
In sum, the federal government cannot force sanctuary jurisdictions to comply with ICE detainers or to enforce immigration laws, and President Trump is limited in his ability to deny significant federal funding to sanctuary cities. If President Trump is insistent on “dismantling” sanctuary cities, the most viable option is to convince Congress to dramatically increase funding for immigration enforcement programs and provide grants to cooperating states that are significant enough to entice sanctuary jurisdictions to participate. Basically, Congress could proliferate ICE’s 287(g) program. So, if the President is serious about “dismantling” sanctuary cities, he may be better served to offer the carrot and bury the stick.