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.