Donald Trump has made no secret of his desire to attack communities that resist his hateful rhetoric about migrants. In particular, he has repeatedly stated that he will work with Congress to cut off federal funding to so-called “sanctuary cities.” Like with much else, he hasn’t bothered to tell us what he means by a sanctuary city. That term is thrown around so much that without a working definition, it is hard to make sense of which cities might come under attack by a Trump anti-sanctuary move.
As I wrote in Crimmigration Law, though “sanctuary policies” take a variety of forms, “they all seek to shelter migrants from immigration law enforcement. Most commonly, sanctuary policies prohibit discrimination on the basis of citizenship status, enforcement of immigration law generally, enforcement of civil immigration laws only, governmental inquiries about citizenship status, notification of federal immigration officials, or a combination of these” (p.270-71).
Recent events suggest that Trump’s aim will be on cities that refuse to cooperate with immigration detainers. In the fall of 2015, Republicans pushed through the House a bill that would have withheld some federal grants from cities that refuse to abide by detainers. Though they were able to get the support of two Senate Democrats, West Virginia’s Joe Manchin and Indiana’s Joe Donnelly, Republicans ultimately failed to get enough Democratic help to push the proposed legislation through the Senate and onto President Obama’s desk (had they been able to, a veto was widely expected). The proposal was commonly known as “Kate’s Law,” a reference to Kate Steinle, a woman killed when a man who lacked authorization to be in the United States inadvertently discharged a gun he found on a San Francisco sidewalk. Steinle’s death made frequent appearances in Trump’s campaign speeches demonizing migrants.
It would be truly ironic if Trump and Republican members of Congress choose to target local governments that refuse to comply with immigration detainers. Several hundred local jurisdictions have taken that position in large part because courts have consistently declared immigration detainers unconstitutional. A number of federal courts have found that they violate the Fourth Amendment (see here and here). More recently, a federal court found that they exceed the authority granted ICE under the Immigration and Nationality Act.
Republicans have also made noises indicating a belief that policies that limit local police cooperation with ICE violate a federal law that “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. 1373(a). Adopted by the Illegal Immigration Reform and Immigrant Responsibilty Act of 1996, this provision has long been thought to do nothing more than prevent local entities from transmitting information about immigration status that they already possess. See City of New York v. United States, 179 F.3d 29, 35 (2nd Cir. 1999).
Emboldened Republicans have taken a broader read in recent months. Guided by a memorandum from the Justice Department’s Inspector General that concluded that a sample of ten “judgmentally selected” policies included some that were “inconsistent with at least the intent of Section 1373” (p.7), Republican leaders set their sights on a host of efforts by localities to make their communities safer. Among the ostensibly inconsistent policies addressed by the Inspector General were limitations on local compliance with immigration detainers (p.4).
My colleague Christopher Lasch responded to the Inspector General’s report with a detailed analysis of that report’s many faults. Memorandum from Christopher N. Lasch, Associate Professor, University of Denver College of Law, to Honorable Bob Goodlatte, Chairman, House Committee on the Judiciary (September 26, 2016). Most substantially, Lasch carefully reviewed a string of Supreme Court decisions that inform just how broadly § 1373 might sweep. In doing so, Lasch noted that the Supreme Court has expressed a deep-seated concern about the ability of such federal laws to trample on political accountability, a core feature of democratic institutions. As the Court explained while striking down federal gun-control laws that forced local governments to help lest they lose some federal funds, allowing Congress to coerce local officials to do the federal government’s biding puts local officials “in the position of taking the blame for [the federal policy’s burdensomeness and for its defects.” Lasch at 6 (quoting Printz v. United States, 521 U.S. 898, 930 (1997)). Lasch’s letter, available here, will prove to be an invaluable resource as the Trump Administration and its Congressional allies seek to expand their ability to dictate how localities interact with their residents.