There are three main questions that cities need to be aware of when dissecting the political rhetoric around sanctuary cities.
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This post is part of a series on the 2018 federal budget.
Is your city at risk of losing federal funding following the Trump administration’s sanctuary cities executive order? Despite the rhetoric we are hearing, we think the short answer is no — at least, not anytime soon. Many legal issues would need to be resolved before the federal government could act to withhold grant funding from any so-called “sanctuary” jurisdiction.
The courts must first determine the constitutionality of enforcing President Donald Trump’s executive order directing the Department of Homeland Security and the attorney general to withhold funding from jurisdictions with sanctuary policies. Recently, nearly 300 legal scholars sent a letter to the president that argued the executive order violates the Fourth and Tenth Amendments of the Constitution. The cities of San Francisco and Seattle have already filed injunctions to stay the order, and a decision on the cases is expected shortly.
Let’s be clear. When dissecting the political rhetoric around sanctuary cities, there are three main questions that cities need to be aware of: What is a sanctuary jurisdiction? How do Immigration and Customs Enforcement (ICE) detainers affect a sanctuary jurisdiction? What does cooperation with ICE mean for cities?
First, there is no legal definition of a sanctuary city/jurisdiction. Last year, Congress tried to define a “sanctuary jurisdiction” as a local government that specifically prohibits its government officials from sharing information with federal immigration information officers, which would be a violation of U.S.C. 8 §1373. While the Department of Justice’s inspector general determined that some jurisdictions have policies that limit the types of information local officials collect on immigration status, that did not mean the jurisdictions were in violation of Sec. 1373.
Second, the immigration hawks that are promoting sanctions against sanctuary cities focus their arguments on compliance with voluntary ICE detainer requests. There is no requirement that a local jurisdiction comply with a detainer request. If a jurisdiction does not comply with a detainer request, that does not make them a sanctuary, regardless of what anti-immigration activists argue.
ICE has the authority to issue a detainer request to any law enforcement agency that has in their custody an immigrant charged or convicted of a crime. Compliance with the detainers is voluntary and at the discretion of the local jurisdiction or law enforcement agency. The courts have ruled that detainer requests violate a person’s rights under the Fourth Amendment because they lack probable cause to arrest and keep someone in jail after they have served their time.
The irony in this whole debate is that ICE has broad authority to issue a warrant for arrest for the same immigrant, which would not violate the Fourth Amendment. When asked why ICE continues to issue detainer requests instead of warrants for arrest, the simple answer is that, to do so, they would have to provide probable cause for the warrant. So, while every other local law enforcement officer must show probable cause before arresting someone, ICE seems to believe they are excluded from this constitutional requirement. The courts, however, disagree with ICE’s determination. Several federal courts have ruled in recent years that local jurisdictions can be held liable for violating immigrants’ civil rights if they detain them at the request of ICE without a court order.
Third, local law enforcement agencies cooperate routinely with ICE and other federal law enforcement agencies to arrest and remove the most dangerous immigrants that are part of drug cartels and gangs. Recent enforcement actions by ICE are increasingly focusing on undocumented immigrants who have been in the country for years and have become woven into the fabric of our communities. Their children attend schools with our children. They contribute to the local economy and support local programs.
Local law enforcement works closely with these communities by building trust to keep the public safe. Local governments consider the risk of tearing up immigrant families and communities, disrupting the local economy, and eroding the trust between law enforcement and the communities they serve.
It is the sole responsibility of the federal government to enforce immigration laws. The president, the attorney general and ICE have made it a top priority to enforce immigration deportation for anyone who is in this country illegally, but this does not mean it must be the top priority of local governments. While local governments should not prevent ICE from performing its duties, they are not responsible for enforcing federal immigration laws.
Ultimately, it is the responsibility of Congress to fix our broken immigration system. The National League of Cities (NLC) has a clear policy position on comprehensive immigration reform, and cities need to urge their Congressional delegation to stop the corrosive political rhetoric against cities and fix our broken immigration system.
City leaders are doing their jobs — and now it is time for Congress to do its job.
Learn more about NLC’s efforts to fight back against proposed budget cuts to city funding.
About the author: Yucel (“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.