The Federal Government Needs to Fix the Immigration System — Not Cities

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An attempt to shift the federal responsibility of enforcing federal immigration laws to local governments is an unfunded mandate that diverts critical resources from local government programs.

U.S. Immigration and Customs Enforcement agents work with local police officers to conduct an early morning
U.S. Immigration and Customs Enforcement agents work with local police officers in Los Angeles. (photo courtesy of U.S. Immigration and Customs Enforcement)

This post was co-authored by Yucel Ors and Aileen Carr.

On Wednesday, President Donald Trump signed the Executive Order on Enhancing Public Safety in the Interior of the United States. This order would direct the federal government to strip federal grant money from sanctuary cities, which are cities deemed by the Trump Administration to willfully violate federal law by shielding aliens from removal. “The American people are no longer going to have to be forced to subsidize this disregard for our laws,” said White House Press Secretary Sean Spicer.

The full text of the executive order is available here. The relevant section of the executive order states:

“It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

In response to the executive order, the National League of Cities (NLC) released the following statement:

“There appears to be a false assumption that ‘sanctuary cities’ prevent U.S. Immigration and Customs Enforcement (ICE) agents from enforcing immigration laws. This could not be further from the truth. In practice, federal programs intended to partner with cities and towns on immigration enforcement are broken. The reality is that, in cities across the nation, police departments are routinely cooperating with ICE’s immigration enforcement efforts, while at the same time building constructive relationships with their communities to improve public safety. The order signed by President Trump does not clearly define sanctuary jurisdictions, so it is difficult to foresee how and which cities will be impacted by the order. Legislative efforts in 2016 to define and penalize sanctuary cities were defeated in Congress, which could have cost cities up to $137 million or more in COPS hiring grants. We call on President Trump to open a dialogue with city leaders, and work with local governments to enact real, comprehensive immigration reform that respects the principles of local control.”

NLC’s long-standing position is that measures requiring cities to use local law enforcement resources to enforce federal immigration laws are unfunded mandates that impose additional disproportionate responsibilities on local law enforcement, increase financial liability on local governments, and ultimately move us further from our foundational principles of federalism. Contrary to the president’s stated public safety goals, this action is likely to jeopardize the effectiveness of many local law enforcement efforts. Many police chiefs, mayors, and city councilmembers across the country are concerned that such policies impede efforts to preserve police-community relations and ensure that residents feel safe reporting crimes and accessing government services.

“One thing I am sure of is that Nashville is stronger and safer when we are a warm and welcoming place for all. While we cannot control border policies here in Nashville, we can pull together as a city by embracing the immigrants and refugees who are an integral part of our community.”

-Nashville, Tennessee, Mayor Megan Berry

“We value the members of our community here and we’re willing to, at some point, sacrifice money to make sure community members feel safe.”

-Beaverton, Oregon, Mayor Lacey Beaty

“Santa Fe is a city that has practiced as part of its values nondiscrimination… We do believe that every person deserves respect and dignity when they’re living in our community peacefully, when they’re contributing. And the issue of law enforcement resources needs to go towards community policing. And so the last thing that we are going to do is serve as an extension of the federal immigration services and begin to issue, through administrative warrants, detention orders.”

-Santa Fe, New Mexico, Mayor Javier Gonzalez

“For more than 150 years, Portland has been a destination for those wanting to apply their hard work to the purpose of creating a better life for themselves and their families. My own family made the trek on the Oregon Trail. We are a city built on immigration. We are not going to run from that history. We will not be complicit in the deportation of our neighbors. Under my leadership as Mayor, the city of Portland will remain a welcoming, safe place for all people regardless of immigration status. This approach is consistent with the Oregon state law and the 4th and 10th Amendments of the United States Constitution. We will not compromise our values as a city or as Americans, and we will resist these policies.”

-Portland, Oregon, Mayor Ted Wheeler

President Trump’s latest executive order is not the first federal measure in this arena – in recent years, Congress has also introduced bills that would cut federal funding to cities they deem to be sanctuary jurisdictions. The most recent bills targeted COPS and CDBG funds, but NLC was successful in efforts to defeat all of them.

Since there is no statutory definition of “sanctuary” cities or policies, and the nature of collaboration between federal and local law enforcement on immigration has evolved significantly over the last decade, there is often much confusion about this issue. Here are the facts:

  • For many years now, ICE agents have routinely worked in all cities, whether or not they have policies that limit the voluntary role cities play in federal immigration enforcement. No city or local government official provides safe harbor to an immigrant who breaks local and state laws.
  • ICE agents have full authority to take people into custody from any jurisdiction as long as they have evidence that the individual violated federal immigration laws. While cities voluntarily cooperate with ICE in all sorts of immigration enforcement efforts, they are not obligated to be a surrogate agency to ICE.
  • Cities are not permitted to have polices that may interfere with or restrict federal law enforcement from enforcing immigration laws.
  • Title 8 of U.S. Code Section 1373 also prohibits cities from restricting local law enforcement from cooperating or exchanging information with federal immigration authorities on any reasonable suspicions they have regarding persons already in their custody.
  • As long as cities are in compliance with Section 1373, the federal government should not be able to withhold funding that has been statutorily authorized and appropriated.
  • Federal agencies may require cities to demonstrate that their policies are in compliance with Section 1373 when they apply for grants and federal assistance. Cities that are not in compliance may need to change their policies prior to receiving federal assistance.
  • The Department of Justice has issued guidance on what cities need to do to comply with section 1373. City leaders can access that resource here.

The short-sighted executive order issued by the president neglects to recognize that is it the sole responsibility of the federal government to prosecute and deport criminals who violate federal immigration laws. At a time when local governments are working to strengthen police-community relations, build trust, advance initiatives to increase economic mobility, and live out their values of inclusion and equity, executive orders and legislative proposals to withhold funding from cities are particularly troubling and counterproductive. An attempt to shift the federal responsibility of enforcing federal immigration laws to local governments is an unfunded mandate that diverts critical resources from local government programs, compromises public safety, and hinders local efforts to work with immigrant communities.

Instead of trying to coerce cities and towns to enforce the broken immigration laws of the United States, President Trump should work with local governments to find a solution that respects the principles of local control, effectively enforces current immigration law, and creates a process whereby undocumented immigrants currently living in our cities may earn legalized status through payment of appropriate fees and back taxes, background checks, consistent work history, and appropriate civics requirements.

About the authors:

yucel_ors_125x150Yucel (“u-jel”) Ors is the Program Director of Public Safety and Crime Prevention at the National League of Cities. Follow Yucel on Twitter at @nlcpscp.

Aileen Carr is the Manager of NLC’s Race, Equity, And Leadership (REAL) initiative.