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This morning, Attorney General Sessions announced the anticipated Trump administration crackdown on Sanctuary Cities. In his speech, AG Sessions urged state and local governments to abandon sanctuary policies, suggesting that jurisdictions continuing such policies will be denied Justice Department grants. However, while he spoke broadly of sanctuary cities, the AG narrowed his language in referencing grant denials, suggesting such would only occur where the policy leads to a violation of 8 U.S.C. § 1373. This leaves it unclear if he was announcing a new, more aggressive policy, or simply was reiterating existing policy.
This blog has previously discussed the Obama administration’s interpretation of 8 U.S.C. § 1373 and the limitations on the enforcement of that statute. (See: First Suit Filed Over Sanctuary Cities Order and President Trumps Toothless Attack on Sanctuary Cities). If the Trump Administration is attempting to go further, to force state and local governments to abandon sanctuary policies and enforce immigration law, then it may well be acting unconstitutionally. That point is well discussed here.
One thing is clear, the AG believes that state and local governments must comply with immigration detainers. He is wrong.
A detainer is a request, not an order. 8 C.F.R. § 287.7(a). Interpreting this provision, Federal District Magistrate Judge Stewart concluded in Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014) that detainers are not mandatory and that agencies are free to release individuals named in such a detainer. In doing so, Judge Stewart followed the holding of the Third Circuit in Galarza v. Szalczyk, 745 F.3d 634, 640 (3d Cir. 2014). Subsequent cases have reached the same conclusion.
In Printz v. United States, 521 U.S. 898, 933, 117 S. Ct. 2365, 2383 (1997) the Supreme Court held “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Federal immigration law reflects this principle. It contains no provision requiring state or local governments to enforce immigration law. In fact is signals the opposite. 8 U.S.C. § 1357(g) provides the AG authority to enter agreements with state and local governments for their assistance with the enforcement of immigration laws. Paragraph (9) of that subsection makes clear that state and local governments can refuse to enter such an agreement. This voluntariness provision cannot be squared with the AG’s speech of this morning.
The Ninth Circuit now has a public access page for State of Washington v. Trump filings, so I won’t be updating this list. Access the full list at:
Below are the key documents filed with the Ninth Circuit Court of Appeals as of 2/6/2017 @ 12:30pm pacific time:
Former Oregon Supreme Court Justice Hans Linde was famous for saying “You have to read the statutes.” Never was this so true as in the case of President Trumps “Executive Order: Enhancing Public Safety in the Interior of the United States.” The White House has touted this order as fulfilling his campaign promise to crack down on sanctuary cities. It does no such thing.
The relevant provisions are Sections 8 and 9. Section 8 directs the Secretary of Homeland Security to engage with state and local officials, “for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).” 8 U.S.C. 1357(g) authorizes the Attorney General to enter agreements with state and local governments authorizing local law enforcement officers to assist in the enforcement of the immigration act. Significantly, states and cities cannot be forced to participate in this program; and sanctuary cities are unlikely to do so. 8 U.S.C. 1357(g)(9).
The heart of President Trump’s attack is Section 9 which establishes an executive branch policy of ensuring that state and local governments comply with 8 U.S.C. 1373. That statute bars governmental entities from prohibiting or restricting the communication of individual immigration status to or from the immigration service. The Executive Order goes on to grant the Attorney General and the Secretary of Homeland Security discretionary authority to restrict funding to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373”. This is what is being described as defunding sanctuary cities.
It is important to keep in mind exactly the limited nature of 8 U.S.C. 1373. While it prohibits adoption of restrictions on the voluntary communication of immigration status information, it imposes no affirmative obligation on state or local governments. It does not require them to enforce immigration law. It does not require them to inquire into an individual’s immigration status. It does not require them to permit their employees to make such inquiries. Actions such as these do not amount to willful refusal to comply with 8 U.S.C. 1373 and provide no basis for the Attorney General or the Secretary of Homeland Security to exercise the discretionary granted by the President.
Most sanctuary provisions already comply with the narrow prohibitions of 8 U.S.C. 1373. For example, Oregon law prohibits the use of government resources to enforce the immigration law while providing an exception for immigration status requests. See: ORS 181A.820. If a sanctuary policy violates 8 U.S.C. 1373, it is easily revised to eliminate the offending provision while remaining true to the original intent of the designation. Considering this, the Trump administration will have little opportunity to flex this new policy.