sanctuary cities ban over-ruled – judge Agrees With Law Prof: It’s Probably Unconstitutional, and a Largely Empty Threat

Federal judge William Orrick III of California has issued an order blocking enforcement of part of a threat by the Trump administration to cut off funding to sanctuary cities.

The court’s agreement with the government’s own admission that it was “ultimately toothless threat,” and one which is probably unconstitutional, parallels a legal analysis by a public interest law professor released Monday entitled “New Sanctuary Threat Largely Empty, Probably Illegal, But Effective.”

Sanctuary Cities
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Below are excerpts from the analysis by law professor John Banzhaf.

The Justice Department’s latest attempt to pressure so-called sanctuary cities to cooperate in immigration enforcement efforts – a threatening letter sent on Friday to nine jurisdictions – seems to be a largely empty or at least an exaggerated threat and probably illegal, but it is likely to be effective anyway, says public interest law professor John Banzhaf.

Notwithstanding suggestions to the contrary, no federal law requires – nor can it constitutionally require – cities to assist the federal government in enforcing immigration law.

More specifically, federal law does not require cities to honor so-called detainer requests from federal immigration authorities, he notes.

Despite many complaints from the administration that sanctuary cities are not honoring detainer requests by ICE, its own report now concedes that such cooperation is not required, and that failure to honor detainer requests cannot provide grounds for withholding federal funds. Thus it has stated:

“Section 1373 does not specifically address restrictions by state or local entities on cooperation with ICE regarding detainers. A legal determination has been made . . . that civil immigration detainers are voluntary requests. The ICE officials with whom we spoke stated that since the detainers are considered to be voluntary, they are not enforceable against jurisdictions which do not comply” [emphasis added].

Indeed, notes Banzhaf, the only requirement applicable federal law imposes, under 8 U.S.C. 1373, is that state and local officials not prohibit or restrict employees from providing “information regarding citizenship or immigration status.”

But since sanctuary cities usually simply have police never question people about their status, officials would have no citizenship and/or immigrant status information available to share which would be restricted, so there would be no violation, and the threat appears to be largely an empty one.

But 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, but it is still likely to be quite effective in ending sanctuary status, suggests Banzhaf.

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 employed in Trump’s order, 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’ own 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, or visa versa.

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 since they do not prohibit, much less “willfully prohibit,” employees from providing immigration information.