Attorney General Jeff Sessions has just threatened 23 so-called “sanctuary” jurisdictions with subpoenas over his claim that their actions may be violating federal laws.
But such subpoenas would be suspect because they appear to have no legal basis and may well be unconstitutional, and judges who will shortly be asked to review them are likely to side with several which have also squelched Sessions’ earlier efforts in this area, suggests public interest law professor John Banzhaf
Banzhaf, who has published analyses of many new legal policies under President Donald Trump, and frequently argued against some who concluded that there were unconstitutional or otherwise illegal, has concluded that no federal law requires - nor can federal law constitutionally require - cities to assist the federal government in enforcing immigration law.
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More specifically, federal law does not require cities to honor so-called detainer requests from federal immigration authorities, he notes, adding that federal judges in California, Chicago, and Philadelphia have already stymied related efforts directed at sanctuary jurisdictions.
Despite many complaints from the administration that sanctuary cities are not honoring detainer requests by ICE, its own report has conceded that such cooperation is not required, and that failure to honor detainer requests cannot provide grounds for withholding federal funds. Thus it has concluded:
"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."
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's 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.
In any event, 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 believe - may be an unconstitutional violation of both states' rights and Congress' rights, 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.
For example, the Supreme Court has said that conditions may not be imposed on federal grants unless they are "unambiguously" stated in the statute "so that the States can knowingly decide whether or not to accept those funds" with the attached conditions and restrictions. 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 whims, without any congressional approval, could create a very dangerous precedent undercutting Congress' own authority (under separation of powers) as well as federalism (upholding states' 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, argues Banzhaf, who has also identified problems with many courts applying Trumplaw.