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.