The Justice Department’s announcement of funding sanctions against cities and counties that don’t honor some immigration enforcement policies is the latest step toward a seemingly inevitable legal showdown.
On Monday, Attorney General Jeff Sessions said at a White House appearance that the Trump administration could cut off $4 billion in Justice Department grants to states, cities, and counties it felt weren’t complying with federal laws and policies. Sessions was repeating policy statements made in an earlier Trump Executive Order about immigration security.
“Today, I'm urging states and local jurisdictions to comply with these federal laws, including 8 U.S.C. Section 1373. Moreover, the Department of Justice will require that jurisdictions seeking or applying for Department of Justice grants to certify compliance with 1373 as a condition of receiving those awards,” Sessions said
Section 1373 requires that “a Federal, State, or local government entity or official may not 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.”
But at the start of his statement, Sessions pointed to another factor in his department’s grant funding decision. “According to one recent poll, 80 percent of Americans believe that cities that make arrests -- that arrest illegal immigrants for crimes should be required to turn them over to immigration authorities. Unfortunately, some states and cities have adopted policies designed to frustrate this enforcement of immigration laws. This includes refusing to detain non-felons under federal detainer requests or otherwise failing to comply with these laws,” Sessions said.
Immigration detainer requests come from federal Immigration and Customs Enforcement (or ICE) officials, asking local law enforcement officials to hold suspected illegal immigrants in custody for up to 48 additional hours if they already are arrested or detained related to a criminal act. The requests themselves are legally voluntary on the part of local law enforcement and Department of Homeland Security policy directives repeatedly phrase detainers as requests made to local law enforcement.
But the Justice Department had been applying pressure on some local agencies that don’t honor these voluntary requests by publishing their names in a new report.
Financial penalties for sanctuary jurisdictions are now the subject of several current lawsuits. In San Francisco, for example, the city’s federal lawsuit against the Trump administration claims the executive order violates the 10th Amendment to the Constitution because of its financial penalties. “The executive order is a severe invasion of San Francisco’s sovereignty. … 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.
Two cities in Massachusetts, Chelsea and Lawrence, also filed suit in February against Trump’s sanctuary city policies. “This executive order comes in and unconstitutionally coerces [the municipalities] to use local resources in a way that is contrary to important principles of local control, and the local officials’ determination regarding what is best for their citizens, for the citizens of Chelsea and Lawrence,” said Inez Friedman-Boyce, an attorney representing the cities.
Supporters of the Trump executive order that expands immigration enforcement in this area 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, a 2014 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.
In a challenge to the Trump immigration order on sanctuary cities, a Florida state judge, Milton Hirsch, didn’t cite the Galarza decision in a ruling earlier in March that supported a Haitian national. James Lacroix was held on an immigration detainer after Miami-Dade County’s mayor changed that city’s policy after the Trump immigration executive order was issued. Instead, Hirsch cited at length a decision written by the late Antonin Scalia in Printz v. United States from 1997.
“Apparently it was clear to the members of the first Congress that the federal government is without power to compel state authorities to house and maintain federal prisoners – even if the federal government offers to pay a fair price for that housing and maintenance,” Hirsch said, citing Scalia’s reasoning in the Printz case.
Miami-Dade is appealing Hirsch’s decision.
Scott Bomboy is the editor in chief of the National Constitution Center.
