Session’s New Threat to Sanctuary Cities May Be Illegal But Effective

Session’s New Threat to Sanctuary Cities May Be Illegal But Effective
Gage Skidmore [CC BY-SA 3.0], via Wikimedia Commons

Jeff Sessions cites Section 1373 to justify cutting off sanctuary cities, But That Doesn’t Seem to Require Much If Anything

Attorney General Jeff Sessions has just threatened so-called sanctuary cities with a cutoff of federal funds if they do not comply with 8 U.S.C. 1373.

However, any such action by Jeff Sessions may unconstitutionally violate both states’ rights and Congress’ rights, and the sanctuary behavior about which he complained may not even violate the statute, argues public interest law professor John Banzhaf.

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Nevertheless, in part because cities may have difficulty obtaining a prompt judicial ruling on the constitutionality of the threat or even of a proposed cutoff, and because of the huge risks and legal costs of challenging governmental action, many more – despite their defiant claims – are likely to cave in.

The entire program, beginning with President Trump’s executive order stating that funds should be cut off to so-called sanctuary cities – if it is interpreted as many suggest, and if a court is ever able to rule on the issue – may be an unconstitutional violation of both states’ rights and Congress’ rights.

Already Florida’s largest county, Miami-Dade, long known for welcoming immigrants, has ordered jails there to “fully cooperate” with Trump’s order, and others appear to be considering it. Other states are also moving to pressure localities to begin cooperating with federal immigration enforcement. These include, Iowa, Kansas, Kentucky, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.

If, as some fear, the order would threaten funding for cities which claim sanctuary status because they tell police not to question people about their immigration status, and don’t honor detainer requests to hold people in jail for immigration purposes, it may be unconstitutional on several grounds.

First, it arguably violates the long-standing principle that the federal government cannot, consistent with the Tenth Amendment, “commandeer” local officials to enforce federal law. This principle dates back at least to a 1842 Supreme Court decision striking down a requirement that states assist federal officials to capture runaway slaves.

It was also reinvigorated in a 2012 ruling that states could not be required to expand Medicaid programs under threat of a loss of federal funds – the same coercive method threatened by Jeff Sessions – except there the threat was one mandated by Congress and signed into law, not a mere presidential order.

Second, the Court has said that conditions may not be imposed on federal grants unless they are “unambiguously” stated in the statute’s text “so that the States can knowingly decide whether or not to accept those funds.” Few if any existing grants have explicit conditions related to providing sanctuary.

Moreover, the conditions, if any, seemingly have to be passed by Congress.

Allowing a president to cut off funds based solely upon his own whim, without any congressional approval, could create a very dangerous precedent undercutting Congress’ authority (under separation of powers) as well as federalism (upholding state’s rights). For example, it could permit a Democratic president to force states to do what a Republican dominated House and Senate might oppose.

Moreover, since the order provides for funds to be cut off only to “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373,” it’s not clear if it would even apply to most “sanctuary cities.”

That statute says simply that “a Federal, State, or local government entity or official may not 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.”

But since sanctuary cities usually simply have police not question people about their status, officials would have no citizenship and/or immigrant status information available to share which would be restricted. Even more clearly, 1373 has nothing to do with refusing to honor detainers.

Many experts commenting on the possible unconstitutionality or uncertainty about the applicability of the order fail to also note that it may be difficult if not impossible for sanctuary cities to get a court to rule on these issues, especially in a timely manner, for a number of reasons.

The first is the administrative law principle known as ripeness, which says that courts should not address legal issues until they are ripe – sufficiently developed, with the facts clear enough, for a court to rule knowledgeably and authoritatively. This applies most strictly when constitutional issues are raised.

Here, since the very meaning of the order, its applicability to different so-called sanctuary activities, and how federal officials will interpret and seek to enforce it are all unclear, courts may well decide that the issues – especially those related to constitutionality – are just not yet ripe enough for adjudication.

A second administrative law doctrine, exhaustion of administrative remedies, provides that courts should not decide legal issues if plaintiffs have failed to exhaust whatever administrative remedies they may have before and within the agency itself.

For example, if the agency provides for hearings, these hearing should occur, and the agency at the highest level should then render a final decision, before a court decides important legal issues.

Here, each threatened city almost certainly will be entitled to a hearing before funds are finally terminated, so cities may have to participate in such a hearing before they can get relief from a court.

However, despite their claims now to the contrary, many cities might be unwilling to have this Sword of Damocles hanging over their heads while they go though a lengthy expensive hearing process, often with their very survival hanging in the balance, simply to protect people illegally in the country.

That means, suggests Banzhaf, that Session’s threat is likely to be effective even if it is unconstitutional. Entities faced with possible financial devastation from funds being cut off are rarely willing to take a risk, and often find that it is much easier to simply comply than to take a chance and fight.

Indeed, this effect is so well known that it goes by the name “regulation by raised eyebrow” – i.e., an agency need do nothing more than suggest possible adverse consequences, and those subject to a possible sanction all too often comply immediately.

Certainly this has proven to be true with regard to colleges which have spent hundreds of millions of dollars to set up programs to deal with rape, based solely upon mere suggestions by the Department of Education, with no more than an implied threat to their funding.

This Jeff Sessions threat falls far short of the explicit threat of loss of funding coming directly from the president in the sanctuary cities executive order. In short, even if the executive order is in fact unconstitutional, no court may ever be able to make that ruling, and many if not most cities may comply anyhow.

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