Sessions’ Sanctuary Speech Likely Unconstitutional But Effective

Sessions’ Sanctuary Speech Likely Unconstitutional But Effective
Gage Skidmore [CC BY-SA 3.0], via Wikimedia Commons

Sessions’ Sanctuary Speech Likely Unconstitutional But Effective; Five States Have Already Banned Them, and Almost 3 Dozen Are Considering It 

WASHINGTON, DC, March 7, 2018 –  Attorney General Jeff Sessions’ speech today in Sacramento about “sanctuary jurisdiction,” and the announcement of a law suit against California over three statutes which allegedly interfere with immigration authority may well, like his earlier pronouncements, escalate what appears to be an unconstitutional effort to force cities to cooperate in the enforcement of immigration law.

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However, also like his earlier pronouncements, it may well be effective even if unconstitutional, argues public interest law professor John Banzhaf.

At least five  states - Georgia, Indiana, Mississippi, Texas and Virginia (awaiting reconciliation) - have already passed laws cracking down on sanctuary cities, and almost three dozen are considering such legislation, all because of an executive order which is apparently unconstitutional, says Banzhaf.

Banzhaf, a professor of public interest law, demonstrated why President Trump's order was unconstitutional, and correctly predicted that it would be enjoined but nevertheless continue to be effective.

In the wake of the original announcement by U.S. Attorney General Jeff Sessions that he would cut off funding if so-called sanctuary cities did not begin cooperating with the federal government regarding illegal aliens, it has been reported that the New York City Police Department [NYPD] now alerts Immigration and Customs Enforcement [ICE] agents if immigrants facing deportation are due to appear in Criminal Court, thereby making it easier for them to be detained by the federal government.

Also, despite Mayor Bill de Blasio's claim that he would defend the residents of New York from the newly aggressive immigration authorities, "regardless of where they come from, regardless of their immigration status," here is what the New York Times just reported.

"While the New York Police Department does not generally hand over detainees to ICE, it does, through a bureaucratic backdoor, essentially provide a road map: Arrest information is sent to the state, which shares it with the Federal Bureau of Investigation. ICE can now see that information."

In another example, Florida's 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.

Two federal district judges, one in San Francisco and another in Chicago, basically agreed with Banzhaf that the policy was unconstitutional, and issued nationwide injunctions against it.

While the executive order may have no legal effect even if the injunctions are lifted, it still sends a clear message to dozens of federal agencies, and thousands of bureaucrats, that the President is strongly opposed to grants being awarded (or even renewed) to hundreds of so-called sanctuary cities.

As a result, many political appointees and others who favor the President's views are likely to avoid awarding any such grants, and even other federal workers opposed to the President's policy may well shy away from making such awards out of fear of alienating their superiors, predicted Banzhaf.

Although Maryland's Attorney General has just issued a legal analysis, similar to that published earlier by Prof. Banzhaf, showing that the Executive Order doesn't really require states to honor detainers or otherwise help ICE, this probably-unconstitutional order will continue to pressure cities, understandably unwilling to risk their funds - or even a law suit - to thwart ICE, predicts Banzhaf.

Similarly, the Justice Department's latest attempt to pressure sanctuary cities to cooperate in immigration enforcement efforts - a threatening letter sent 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 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.

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 may suggest - would  constitute 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 in capturing 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 authorization or 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.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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