[This is Part II in a four-part series that sets out to clarify the continuing confusion around sanctuary cities. Start with Part I.]
It’s been well over a month since President Trump issued his January 25, 2017 executive order directing the Secretary of the Department of Homeland Security to pull federal funding from “sanctuary jurisdictions,” and still the prevailing wisdom is that nobody knows what a sanctuary jurisdiction is. Mayors of major cities like Los Angeles and Austin have professed uncertainty. When asked to define the term two weeks after the order’s release, DHS Secretary John Kelly, the man tasked with making the designations that are supposed to result in loss of funding, responded, “I don't have a clue.”
It’s true that colloquially speaking “sanctuary” can mean a lot of things. That’s why there is no consensus on how many sanctuary jurisdictions there are in the country; estimates range from 200 to over 300. In some states (like Connecticut), the relevant law simply permits state or local law enforcement agencies to ignore a federal request to detain an undocumented person who hasn’t committed a serious felony. In some cities (like San Francisco), the moniker signifies that local police officers are prevented not only from using city resources to comply with a detainer request from federal immigration officers (ICE), but also, critically, from gathering certain kinds of information or complying with ICE's requests for advance notification of when an individual (who is not a suspected violent felon) in city custody is being released.
As explained elsewhere on this site, the short answer is that the term “sanctuary” can signify roughly two kinds of state- or locality-imposed limitations: (1) limitations on the information about undocumented residents that is collected, retained, used, or shared with the feds (I’ll call these “information restrictions”); and (2) limitations on cooperating with the federal government when it comes to the arrest, detention or transfer of individuals based on their immigration status (I’ll call these “detention restrictions”).
For purposes of understanding and analyzing Trump’s order, however, the relevant “sanctuary” definition is obviously the one contained in the order itself. As noted above, the order’s definition is quite limited and extends only to jurisdictions that have implemented particular information restrictions.
The order’s defunding provision, Section 9(a), states that:
the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.
Section 1373 (part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) provides, in turn, that a government entity or official can’t (a) “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,”and that “persons or agencies” can’t (b) “prohibit, or in any way restrict . . . a government entity” from “maintaining” or “exchanging” such information.
In effect, then, Trump’s order defines a “sanctuary jurisdiction” as one that prohibits or restricts a government entity or official when it comes to sending to, receiving from, maintaining, or exchanging with federal officers information regarding an individual’s citizenship or immigration status.
[Note: Based on differences in wording between the subsections, it seems possible to conclude that states and localities are clearly government “entit[ies]” subject to restrictions under subsection (a) but not necessarily “persons or agencies” subject to the “maintaining” and “exchanging” provision of subsection (b). That is, under subsection (b), perhaps the governor cannot unilaterally prohibit the maintaining and exchanging of information, but a legislature—which is not a “person or agency”—can. A person is defined as “an individual or an organization.” 8 U.S.C. § 1101(b)(3).]
Consider how much is not captured by this definition. Trump’s executive order has no effect on a city that prohibits its employees from (a) personally detaining individuals based on their immigration status, or (b) transporting or facilitating the transfer of individuals in its custody to ICE. Nor does it affect a city’s prerogative to prohibit certain kinds of (c) information collection or sharing with ICE outside of citizenship or immigration status, such as information regarding an individual’s pending release from city custody. Trump’s “sanctuary jurisdiction” definition is sufficiently narrow that the first self-declared sanctuary cities to file suit against the federal government over the order are suing for not just an injunction but also a declaratory judgment that they are not, in fact, “sanctuary jurisdictions” per the order (San Francisco, CA; and Chelsea and Lawrence, MA).
Yet “sanctuary” has become a dirty word on the right and a source of confusion and defensiveness on the left. And as I argued in Part I of this series, all of this has only served to heighten the “soft power” of Trump’s order to the extent it mystifies voters and triggers overreactions from state and city officials.
Of course, Trump’s order concededly does a lot of things other than compel compliance with § 1373. It attempts to shame jurisdictions that don’t voluntarily comply with detainer requests by compelling them to weekly publish a list of criminal actions committed by aliens for whom such a request was ignored. It announces the administration’s intent to hire 10,000 additional immigration officers. And it directs DHS to terminate the Priority Enforcement Program (PEP), which sensibly tiered the detention of undocumented residents based on threat potential and required DHS "to exercise discretion based on individual circumstances,” in favor of reinstituting the far harsher Secure Communities program, under which state and local arrests were automatically fed to ICE.
But none of these is tied to the defunding threat underpinning the order’s “sanctuary” definition.
Recognizing how narrowly the order defines sanctuary jurisdictions is helpful in avoiding unnecessary rabbit holes, like the recurring suggestion that, for purposes of fighting Trump’s executive order, the § 1983 Third Circuit case Galarza v. Szalczyk usefully holds that states and localities need not imprison people based on ICE detainer requests. That case should be irrelevant: it centers on a regulatory provision, 8 C.F.R. § 287.7, that on its face seems to mandate state and local compliance with federal detainer requests but which was interpreted differently by the court to avoid constitutional problems. (The court’s holding: “Under the Tenth Amendment, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government.”) Nothing in Trump’s executive order gets close to mandating state or local cooperation with detainer requests; such a requirement would raise blatant constitutional complications that contrast sharply with the potential problems posed by the subtler, information restriction issue under § 1373.
I say “should” be irrelevant because I recognize the federal government has at points pushed to expand § 1373 with “spirit of the law” arguments that draw on a jurisdiction’s willingness to comply with detainer requests. Most notably, a May 2016 report issued by the DOJ’s Office of the Inspector General (in response to Congress’s demand for verification that recipients of certain Department grants were properly certifying that they were in compliance with “applicable laws,” such as § 1373) expressed the concern that the refusal of jurisdictions like Miami-Dade to honor ICE detainer requests “may have a broader practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore, be inconsistent with at least the intent of Section 1373.” In its legal opinion analyzing Trump's order, the Miami-Dade County Attorney cited this very line to support its conclusion that compliance with the letter of § 1373 might not be enough to escape the administration’s defunding wrath.
But it’s a mistake to read and apply the IG report this broadly. I see nothing backing up the report’s assertion of § 1373’s larger intent: it has no clear basis in the text of the statute and I have seen no support for it in the statute’s legislative history. So far as I can tell, the report simply makes the assertion based on ICE officers’ perception of the negative impact that various state and local restrictions have on public employees’ willingness to cooperate with ICE generally, and uses this perception to to reach the policy conclusion that jurisdictions should be required to affirmatively communicate to all personnel the provisions of § 1373 as a condition of receiving certain Justice Department grants that require compliance with § 1373. All of this has no bearing on what § 1373 actually says, or on the meaning of Trump’s executive order conditioning funding on compliance with § 1373 for state and local policies not at odds with the language of § 1373.
The Miami-Dade County Attorney opinion also expressed significant concern about a provision of Trump’s executive order that provides that the Secretary of Homeland Security “has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” The provision also directs the Attorney General to take “appropriate enforcement action” against “any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”
Miami-Dade is not alone in interpreting this provision as giving the DHS Secretary and Attorney General a blank check when it comes to extending the definition of “sanctuary” to enforce the order’s defunding mandate. Over at the Atlantic, for example, the legal scholar Garrett Epps argued last month that this provision “seems to mean that any jurisdiction that displeases ICE—whether by ignoring 1373 or for any other reason—may be stripped of a wide variety of federal funding.” Employing similar reasoning, the Miami-Dade legal opinion concludes that the County is in compliance with § 1373, yet declines to conclude that the County is safe from designation as a sanctuary jurisdiction under the order. ("[I]t is unclear whether the Secretary of Homeland Security will attempt to exercise his discretion to extend the 'sanctuary jurisdiction' designation to jurisdictions that have 'in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law, appear on the weekly list, or fail to honor detainer requests.")
I disagree with this reading. This may sound like a sweeping provision granting the DHS Secretary (John Kelly) a great deal of procedural latitude when it comes to sanctuary designation, and granting the Attorney General (Jeff Sessions) equally sweeping enforcement powers—but consider two things.
First, notwithstanding the DHS Secretary’s procedural “discretion” to make sanctuary designations, the same provision prescribes the substantive scope of the DHS Secretary’s exercise of his designation authority, and that portion is anchored to jurisdictional compliance with § 1373. Again, that’s the first part of Section 9(a), which directs the Secretary to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants . . .” That’s it. That is the standard the DHS Secretary has been authorized to enforce when it comes to grant-cutting under the order (of course, that doesn’t bind the President in any way if he changes his mind, but no executive order ever binds the President, and here we are talking about whether the order is reason to be concerned). To the extent the DHS Secretary veers from that definition when exercising his designation authority, he is going outside the scope of the authority granted by the order.
As for the statement authorizing the Attorney General to take action against states that, in effect, interfere with the enforcement of federal law, this doesn’t do anything special. The Justice Department can already do this, and has done it. Recall, for example, when the Obama administration sued Arizona over its draconian law requiring state and local police to investigate the immigration status of anyone suspected of being an undocumented alien. The administration argued the law was unconstitutional and also that the creation of patchwork state laws interfered with the federal government's prerogative to shape the country’s immigration policies.
In short, I see no basis for treating the designation and enforcement provision of the order as though it affords DHS and DOJ sweeping new authority to cut off funding to states and localities.
In the remaining parts of this series, I will address questions about the constitutionality of the executive order. In the course of that analysis, I will consider the Miami-Dade County Attorney's concern that because of how certain discretionary federal grants are administered, Trump has the power to reduce the funds of jurisdictions whose policies displease him, in a way that is hard to legally challenge. As I will explain, closely examined, this fear has little to do with the executive order and everything to do with the fact that the president is, after all, a very powerful man. Parts III and IV will offer a clear-eyed appraisal of the scope of that power, and its limits.