Constitution Daily

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A look at Trump’s other immigration executive order under debate

February 13, 2017 by Scott Bomboy


Last week, a federal appeals court ruled against President Donald Trump’s immigration ban executive order, setting up a possible Supreme Court date. But that’s not the only Trump immigration order that could face a  legal showdown.


As of Monday, the new President has signed three executive orders directly confronting immigration issues. The order currently in the legal system is called an “Executive Order: Protecting The Nation From Foreign Terrorist Entry Into The United States.” It deals with refugees in general and immigrants from seven Mideast countries. It was issued on January 27, 2017. The Trump administration may appeal last week’s decision or it could draft a new executive order.


A second executive order issued on January 25, 2017 directs the federal government to build a wall and take other security measures near the United States’ southern border. The “Executive Order: Border Security and Immigration Enforcement Improvements” asks “executive departments and agencies (agencies) to deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”


The third immigration order is already the subject of one lawsuit and most likely several more when it is implemented. The “Executive Order: Enhancing Public Safety in the Interior of the United States” directs federal agencies to take aggressive actions against “sanctuary jurisdictions” as to be defined by the Department of Homeland Security.


The on-going debate about sanctuary jurisdictions involves cities and counties that don’t honor requests from federal Immigration and Customs Enforcement (or ICE) officials to hold suspected illegal immigrants in custody for up to 48 additional hours if they already are arrested or detained by local officials, and local policies that could block the sharing of information between local and federal law enforcement about illegal immigrants.


The executive order states that “many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.  This is particularly so for aliens who engage in criminal conduct in the United States. … Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.”


The order tells federal agencies to prioritize illegal aliens for removal who have been convicted of or are currently charged with a criminal offense; have committed acts that constitute a chargeable criminal offense; have engaged in misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.


The order also says that state and local governments that don’t honor a federal law, Title 8, Section 1373, could be considered as sanctuary jurisdictions. Section 1373 allows for the exchange of information between federal and local law enforcement officials “regarding the citizenship or immigration status, lawful or unlawful, of any individual” and says local government can’t prohibit information exchanges.


The order also empowers the Secretary of Homeland Security to identify sanctuary jurisdictions and to work with the Attorney General to block “federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary” to sanctuary jurisdictions.


A different section of the order directs Homeland Security to better publicize Declined Detainer Outcome Reports. The detainer order is a voluntary request from immigration officials to local law enforcement hold potential illegal immigrants for an additional 48 hours, as Homeland Security evaluates if they are subject to removal from the country. The order also requires a public list of “criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”


To be sure, the sanctuary city issue is complicated and revolves around many factors, but any lawsuit is likely to point to one core issue: a conflict between two major provisions in the Constitution.


In late January, a lawsuit was filed by the city of San Francisco contesting the order, and the mayors of several major cities have threatened to file their own lawsuits against the Trump administration. San Francisco’s lawsuit addresses a basic constitutional claim that the executive order violates the 10th Amendment to the Constitution. “The executive order is a severe invasion of San Francisco’s sovereignty,” the lawsuit says. “The Executive Branch may not commandeer state and local officials to enforce federal law.”


The lawsuit explicitly mentions the denial of federal grant money for its adoption of laws that it feels complies with Section 1373; the city also claims it will be denied grant money because Homeland Security could include local governments that don’t honor voluntary detainer requests on its sanctuary jurisdictions list. And it claims Section 1373 is unconstitutional.


Supporters of the executive order point to one of the most powerful tools in the Constitution, Article VI’s Supremacy Clause, which in part reads, “This Constitution, and the laws of the United States … shall be the supreme law of the land” and the clause establishes that the Constitution and federal laws in general, take precedence over state and local laws in areas where they conflict. As stated in the executive order, the Trump administration believes “sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.”


One federal court decision could lead to some insight into where the overall legal argument will head, at least on the 10th Amendment and Supremacy Clause issues. In Galarza v. Szalczyk, an opinion from the Third Circuit Appeals Court based in Philadelphia found that local governments didn’t have to comply with detainer orders.


“On two occasions the Supreme Court has struck down portions of federal laws that compelled states or local state agencies on anti-commandeering grounds,” the opinion read.


Strongly dissenting in the three-judge opinion was Maryanne Trump Barry, President Trump’s sister, who sits as a judge in the Third Circuit. Barry was concerned that the federal government wasn’t asked for an opinion in the dispute between an Allentown, Pa., man who was held by local police under an ICE detainer even though he is a United States citizen.


“I am deeply concerned that the United States has not been heard on the seminal issue in this appeal, an issue that goes to the heart of the enforcement of our nation’s immigration laws. And make no mistake about it. The conclusion reached by my friends in the Majority that immigration detainers  … do not impose any obligation on state and local law enforcement agencies to detain suspected aliens subject to removal, but are merely requests that they do so, has enormous implications and will have, I predict, enormous ramifications.”


Scott Bomboy is the editor in chief of the National Constitution Center.


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