Is Your City at Risk of Losing Federal Funding?

There are three main questions that cities need to be aware of when dissecting the political rhetoric around sanctuary cities.

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The Trump administration has directed the Department of Justice (pictured above) and the Department of Homeland Security to withhold funding from sanctuary jurisdictions — an order that raises more questions than it answers for cities. (Getty)

This April recess, NLC is encouraging city leaders to engage with their members of Congress while they are at home in their districts for two weeks. Don’t let Congress leave America’s cities behind — join us this week and next as we #FightTheCuts proposed in the administration’s budget.

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.

yucel_ors_125x150About 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.

Local Governments Sue Over Sanctuary Jurisdictions Executive Order

The executive order is under litigation – but how worried should cities be that the president will actually take away money from sanctuary jurisdictions in the near future?

San Francisco is one of a number of cities that have sued the Trump administration in response to the sanctuary cities executive order, arguing that enforcing federal immigration laws does not relate to federal funding they receive for infrastructure, health care, education or other fundamental systems. (Getty Images)

Five days after assuming office, President Donald Trump signed an executive order threatening to take away federal funding from so-called sanctuary jurisdictions. The executive order leaves it to the Secretary of Homeland Security to define “sanctuary jurisdictions.” Unsurprisingly, a number of cities and counties have sued the president over this executive order, including Santa Clara County, San Francisco and Richmond, California, Seattle, and Lawrence and Chelsea, Massachusetts.

By mid-April, a court will likely grant or deny a preliminary injunction in the Santa Clara County case. We know the legal allegations the cities and counties have made against the president, and the president has responded to the Santa Clara County and San Francisco lawsuits.

All of the complaints make different arguments and frame the legal issues slightly differently. Here are the three main arguments:

1) Spending Clause

The U.S. Constitution’s Spending Clause allows Congress to place conditions on federal money local governments receive. The local governments argue that Spending Clause authority resides with Congress – not with the president. Even if Congress had the authority to take away federal funding from sanctuary jurisdictions per the Spending Clause, the president lacks the same authority as a matter of separation of powers.

The Supreme Court has ruled that conditioning the receipt of federal funds may not be coercive, and that the conditions must be stated unambiguously and relate to the federal interest in the grant program. The local governments suing President Trump argue that these requirements are not met.

In NFIB v. Sibelius (2012), Chief Justice John Roberts famously described the Affordable Care Act’s requirement to withhold all Medicaid funding if states refused to agree to the Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Santa Clara County, for example, claims it will lose 15 percent of its budget if it loses all federal funding.

The Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds, it must do so “unambiguously.” None of the federal funding local governments receive requires them to participate in enforcing federal immigration laws.

Likewise, the Supreme Court has held that the conditions Congress places on federal grants must be “germane” or “related to” the federal interest in the grant program. The local governments argue that enforcing federal immigration laws does not relate to federal interests in federal funding they receive for infrastructure, health care, education, etc.

2) Fourth and Tenth Amendments

The sanctuary jurisdictions executive order states that the attorney general may take “appropriate enforcement action” against any entity which has in effect a “statute, policy or practice that prevents or hinders the enforcement of federal law.” This language – and the fact that the executive order reestablished Secure Communities and requires the Secretary of Homeland Security to publish a weekly list of jurisdictions that don’t honor Immigration and Customs Enforcement (ICE) detainers – has lead local governments to conclude that the executive order requires local governments to comply with ICE detainers.

In their lawsuits, the local governments claim that complying with ICE detainers violates the Tenth and Fourth Amendments.

When someone is arrested, ICE receives their fingerprints and may request through an ICE detainer that a local government hold the person so that ICE can pick them up and deport them. Numerous courts have held that complying with ICE detainers violates the Fourth Amendment because such detainers are rearrests not supported by a warrant.

Following the sanctuary jurisdictions executive order, Miami-Dade County decided to comply with ICE detainers and was sued. A judge ruled that Miami-Dade County lacks the power under the Tenth Amendment, which reserves powers not delegated to the federal government to the state, to comply with warrantless ICE detainers. Enforcing federal immigration law is the sole responsibility of the federal government.

3) 8 U.S.C. 1373

The sanctuary jurisdictions executive order requires local governments to comply with 8 U.S.C. 1373. This statute bars prohibitions on government entities from maintaining or sharing citizenship or immigration status information.

The local governments suing in this case note that 8 U.S.C. 1373 does not require them to collect information about immigration status. They do not collect this information and are therefore in compliance with 8 U.S.C. 1373, they argue.

San Francisco argues that it complies with 8 U.S.C. 1373 but that the statute violates the Tenth Amendment. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement wherein local governments cannot be required “to enact or administer a federal regulatory program.”

Federal response

President Trump’s response to the Santa Clara County and San Francisco complaints should alleviate any fears that the president intends to take away any money from sanctuary jurisdictions any time soon. The administration’s response to the Santa Clara County complaint describes five steps which would have to occur before any local government will be deprived of federal funds (none of which have yet occurred):

(1) the Attorney General and the Secretary of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8 U.S.C. § 1373;” (2) the Secretary must identify any state or local governments that constitute “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the Attorney General must decide which federal funding sources are “necessary for law enforcement purposes;” (4) the Secretary and the Attorney General must then determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and the Attorney General must determine how to implement those actions “consistent with law.”

A few aspects of the administration’s response to the Santa Clara County and San Francisco complaints are noteworthy.

First, both responses avoid defending the constitutional claims; instead, the administration argues that, because no federal funding has been taken away from either local government, the cases aren’t yet ready to be reviewed by a court.

Second, the administration disavows the notion that all federal funding can be taken away from sanctuary jurisdictions. More specifically, in the Santa Clara County complaint, the administration argues that only jurisdictions that “willfully refuse to comply” with 8 U.S.C. 1373 become “not eligible to receive Federal grants.” But as Santa Clara County points out in its response, “it is telling that the administration neither identifies a single grant that imposes that condition nor addresses the numerous bills to do so that Congress considered and rejected.”

Finally, both administration responses conspicuously avoid any acknowledgement that the executive order may require local governments to comply with warrantless ICE detainers.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

What’s Next for the Second Blocked Travel Ban?

Judges in Hawaii and Maryland recently prevented parts of the second executive order on refugees from going into effect temporarily, citing likely violations of the U.S. Constitution’s Establishment Clause.

President Trump’s second travel ban prohibits refugees and other visitors from predominantly Muslim countries from entering the United States. (Getty Images)

On March 16, 2017, President Donald Trump’s second travel ban executive order was scheduled to be enacted. Within hours of each other, federal judges from Hawaii and Maryland issued decisions temporarily preventing portions of it from going into effect nationwide. Both decisions conclude that the executive order likely violates the Establishment Clause because it was intended to prevent people from for entering the United States on the basis of religion.

The State of Hawaii (and an American citizen of Egyptian descent with a Syrian mother-in-law lacking a visa) brought the case decided by the court in Hawaii.

The president’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down, concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

The second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers.

The Establishment Clause prevents the government from preferring one religion over another. To that end, laws must have a secular purpose.

The Hawaii judge reasoned that “a reasonable, objective observer enlightened by the specific historical context, contemporaneous public statements, and specific sequences of events leading to its issuance” would conclude the executive order was intended to disfavor Muslims despite its “stated, religiously-neutral purpose.” More specifically, the court relied on numerous statements made by the president himself indicating he wanted a “Muslim ban.”

The Maryland judge’s analysis of the purpose of the travel ban is very similar to that of the Hawaii judge, but the Maryland judge spends more time dismissing the notion that national security concerns were the real reason for the travel ban. “The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.”

President Trump has three options at this point. First, he can appeal both rulings to the Ninth and Fourth Circuits, respectively, like he did when a federal district court judge in the state of Washington struck down the first travel ban. Three-judge panels will decide whether to affirm the lower court decisions. Second, he can go back to the drawing board again and issue a third travel ban. Finally, he can abandon altogether the adoption of a travel ban.

Initial comments made by the president indicate he would like to take this travel ban (as well as the first one) all the way to the Supreme Court.

On March 15, 2017, the full Ninth Circuit issued an opinion stating that it would not rehear the case regarding the first travel ban. Interestingly, five Ninth Circuit judges dissented from this decision, concluding that the first travel ban was “well within the powers of the presidency.”

If the president appeals the Hawaii ruling to the Ninth Circuit, it is possible that the three-judge panel could include between zero and three of these dissenting judges.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

What’s Next for President Trump’s Travel Ban

The executive order on refugees has had a significant impact on America’s cities – but it could also be an indicator of how the president’s executive orders will generally be interpreted throughout the legal system moving forward.

(Getty Images)

Litigation will likely continue regarding President Trump’s travel ban, which prohibits refugees and other visitors from predominantly Muslim countries from entering the United States. (Getty Images)

On February 9, the Ninth Circuit Court refused to stay a district court’s temporary restraining order disallowing President Donald Trump’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

The states of Washington and Minnesota sued President Trump, claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. A wide swath of people are affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status.

The government argued that the president has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed, stating “there is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.”

The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.”

Technically speaking, no court has yet ruled on the merits of this case – instead, the courts have only temporarily prevented the executive order from going into effect based on their view that the government is likely to ultimately lose. The purpose of a temporary restraining order is to stop a likely unlawful activity until a full briefing can occur to determine if unlawful activity is in fact occurring.

In response to the temporary restraining order, the president Tweeted, “SEE YOU IN COURT.” We have every reason to believe the litigation in this case will continue, so what are the president’s options?

A run-of-the-mill case would now go back to the district court where the legal issues would be fully briefed. The district court would then issue an opinion determining definitively whether the executive order is unconstitutional. That ruling could then be appealed back to the Ninth Circuit and ultimately the U.S. Supreme Court. However, President Trump has two other options.

First, he can ask the U.S. Supreme Court to stay the district court’s temporary restraining order while the case is being fully briefed at the district court. This request would go to Justice Anthony Kennedy, who oversees emergency appeals from the Ninth Circuit. Justice Kennedy could rule on this issue alone or ask the entire Court to rule (which is probably more likely). Five votes from the current eight Justices would be needed to temporarily reinstate the ban. As Amy Howe of SCOTUSblog notes, “if the government can’t get those votes – which could be difficult, given the temporary and relatively narrow nature of the court’s ruling – the ban could remain on hold while its full merits are litigated in the lower courts.”

Second, instead of going directly to the Supreme Court, President Trump could ask the entire Ninth Circuit to stay the district court’s temporary restraining order while the case is being briefed at the district court.

Two other technical points about this case that could affect whether and how it is litigated are noteworthy. First, the travel ban only lasts for 90 days, so at some point very soon the litigation in this case could be moot unless the president extends the travel ban. Second, President Trump could modify the executive order to cure the due process problems the Ninth Circuit pointed out. However, this might not be enough. Washington and Minnesota raised numerous claims in addition to due process which the Ninth Circuit did not rule on for the sake of expediency. However, the Ninth Circuit went out of its way to describe, but not rule on, the states’ religious discrimination claim – which at the very least implies that the court thought this claim might be valid as well.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Refugee Executive Order Faces Legal Challenges

Judges in New York and Boston, among other cities, have prevented parts of the executive order on refugees from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses.

(Wikimedia Commons)

Protestors have gathered at airports across the country, such as the Metropolitan Airport in Detroit (above), to protest President Trump’s executive order barring refugees and other visitors from predominantly Muslim countries from entering the United States. (Wikimedia Commons)

President Donald Trump’s refugee executive order has resulted in confusion and lawsuits which will continue to be resolved in the upcoming months. On Monday night, acting Attorney General Sally Yates directed Justice Department attorneys not to defend the executive order in court. President Trump quickly fired her. Dana Boente was promptly sworn in, and has instructed DOJ lawyers to “defend the lawful orders of our president.”

Cities preparing to receive Syrian refugees and others are having to change plans. Additionally, cities have been affected by protests, airports have been overrun, and 16 attorneys general have spoken out against the executive order.

While not all aspects of the executive order are entirely clear, it includes the following:

  1. People from the following countries may not enter the United States for the next 90 days: Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen
  2. Syrian refugees are banned from the United States indefinitely
  3. No refugees will be allowed into the United States for the next 120 days
  4. Only 50,000 (versus 110,000 last year) refugees will be allowed in the United States in 2017
  5. Refugees with religious-based persecution claims will be prioritized where they are of a minority religion in their country of origin

Judges in New York, Boston, Virginia, and Seattle have issued temporary injunctions against various aspects of this executive order, citing a variety of legal grounds.

A wide swath of people will be affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status. Adding to the complexity, the Immigration and Nationality Act appears contradictory. It gives the president of the United States broad power to ban classes of people for periods of time “as he shall deem necessary” – yet it also states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Numerous legal theories have been relied on and are being discussed as grounds for challenging this executive order.

Judges in New York and Boston prevented parts of the executive order from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses. Due process generally requires that a person is afforded an opportunity to be heard (for example, at a hearing before an impartial decision-maker) before they are deprived of a right. Equal protection requires that the government not treat people differently on the basis of race, ancestry, or religion.

David Cole, Legal Director for the American Civil Liberties Union (ACLU), sees this executive order as essentially a Muslim-only ban on immigration which violates the Constitution’s Establishment Clause. While it doesn’t explicitly ban anyone on the basis of religion, the fact that it applies to seven Muslim-majority countries and creates, practically speaking, preferences for Christians, is enough to make it unconstitutional, Cole argues.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

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

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.

Legal Steps Sanctuary Cities Can Take If They Lose Federal Funding

The State and Local Legal Center’s Lisa Soronen discusses a few possible legal theories cities may rely on if they sue the federal government in the wake of President Trump’s most recent executive order.

(Getty Images)

New York City Mayor Bill de Blasio is threatening to sue the Trump administration in response to its most recent executive order, which calls for the removal of immigrants who (according to an immigration officer) are deemed to pose a risk to public safety. The order could theoretically pertain to any immigrant who has had any sort of interaction whatsoever with local law enforcement. (Getty Images)

On the campaign trail, President Donald Trump promised to cancel all federal funding to sanctuary cities who do not cooperate with the federal government in enforcing federal immigration law. True to his word, President Trump has signed an executive order stating that sanctuary cities are “not eligible to receive Federal grants,” with some unclear exceptions.

Whether and when this executive order will lead to cities losing federal funding, and how much, is unknown. New York City mayor Bill de Blasio has vowed to sue the federal government “the minute action to withhold funding” occurs.

Much has been written about what legal theories could be relied on to challenge the cancelling of federal funds. It is difficult to gauge the strength of these theories because all are rooted in Supreme Court precedent applying broad constitutional provisions in fact contexts different than this executive order.

Below are a few possible legal theories cities may rely on if they sue the federal government. The first three are based on limitation the Supreme Court has found in the Constitution’s Spending Clause. In short, the Spending Clause allows the federal government to place conditions on money states and local government receive – to a point. The final theory rests on the Tenth Amendment.

If sanctuary cities sue the federal government, they are likely to allege that cancelling all federal funding is “coercive” under the Spending Clause. In NFIB v. Sibelius (2012), Chief Justice Roberts famously described the federal government’s plan to withhold all Medicaid funding if states refused to agree to the Obamacare Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Many sanctuary cities would stand to lose that percentage of their budget – and more – if they lost all federal dollars.

As George Mason University School of Law professor Illya Somin points out in a Washington Post article, the fact that the statutory language of most, if not all, federal grant programs to cities doesn’t require cities to assist the federal government with immigration enforcement is another possible ground for sanctuary cities to challenge this executive order. In decisions, including Pennhurst State School and Hospital v. Halderman (1981), the Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds it must do so “unambiguously.”

The Supreme Court also has held that per the Spending Clause conditions Congress place on grants must be “germane” or “related to” the federal interest in the grant program. In South Dakota v. Dole (1987), the Court noted approvingly that South Dakota didn’t challenge the “germaneness” of the Secretary of Transportation withholding a percent of highway funds to states which did not raise the drinking age to 21.

Now imagine if Congress “unambiguously” conditioned a number of federal grant programs for roads, health care, education, etc. on cities assisting with federal immigration enforcement. Cities could argue these conditions are not “germane” or “related to” the federal interests in funding roads, health care, or education.

The Tenth Amendment reserves powers not delegated to the federal government to the states. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement where states and local governments cannot be required “to enact or administer a federal regulatory program.” For example, in Printz v. United States (1997), the Court struck down a federal law requiring local police departments to perform handgun background checks until the federal government could manage the task. Sanctuary cities could therefore argue that they cannot be commandeered into enforcing federal immigration law.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Forecasting the Future of Cities Under President Trump

Campaign rhetoric can give us insight into a politician’s perspective, even after they take office.

This is a guest post by Dr. Michael Pagano.

The 2016 presidential campaign rhetoric was laced with mischaracterizations of cities, even as we have come to understand the importance of cities and metro regions as the nation’s key economic drivers in the 21st Century. Yet, campaign rhetoric and the candidates’ statements do speak to an understanding of each candidate’s perspectives on cities and their connections to the federal government.

Rather than work through the list of proposed people-based programs and estimate their potential city impacts, let’s take a look at three broad federal policy areas that will certainly be (or already have been) addressed by the Trump Administration and that clearly have a place-based dimension: infrastructure, tax reform, and sanctuary cities.

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America’s infrastructure needs attention. While much is still unknown about the future of infrastructure in American cities, there are some indications of where we are headed. (Getty Images)

Infrastructure. The American Society of Civil Engineers (ASCE) grades the nation on its infrastructure deficit, and the latest report card isn’t pretty. A failing or near-failing grade is commonplace, and ASCE estimates $3.6 trillion as the infrastructure deficit – a staggering shortfall.

Although President Donald Trump’s infrastructure plan is still being shaped, the role that cities play in designing the infrastructure plan – and, more importantly, the extent to which the Trump administration will focus on local infrastructure needs – is not entirely known. But here’s what we do know:

First, it is clear that the Trump Administration will call on public-private partnerships (PPPs) to boost spending by $550 billion (and up to $1 trillion, as he proposed during the campaign). In confirmation hearings, Trump’s nominee for DOT Secretary, Elaine Chao, raised the prospects of PPPs to rebuild the nation’s highway system. This kind of PPP activity tends to be unattractive for fixed assets that are ‘jointly consumed’ (e.g., city hall, courts, police stations, fire engines, parks). Shared assets are hard to price according to use, and it is equally difficult to assign a ‘fee’ for their services. However, the more cities can benefit from PPPs (e.g., bridges, water, transit), the more freed-up capital they will have for ‘jointly consumed’ public assets. PPPs may be tempting for cities with massive infrastructure needs and backlogged maintenance projects, but cities should move cautiously to assure that taxpayers’ investments are secure and treated the same as private investments.

Second, infrastructure investment can be for creating new projects as well as maintaining existing structures. Although politicians prefer to attend a ribbon-cutting ceremony to open a new building or bridge, it’s important to appreciate that both new construction and maintenance projects are necessary and spur local economic activity. And, given the state of so much municipal infrastructure, a federal plan should emphasize ‘maintaining’ these existing structures.

Third, if we learned anything from the 2009 federal government stimulus grants, it’s that infrastructure block grants delegated to states don’t always trickle down to the local level. Cities often know their infrastructure needs better than states do, so cities should be offered the authority and responsibility to decide on the infrastructure projects that they find critical to their economic development strategies.

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Tax reform could have repercussions for cities’ abilities to finance local projects. (Getty Images)

Tax Reform. Whether it’s massive, like the 1986 Tax Reform Act, or just incremental, cities will feel the impact of any potential tax reform. President Trump has said in no uncertain terms that the tax brackets need to be lowered. And although he hasn’t embraced it, there is also talk of eliminating the tax exemption on municipal bonds. Coupled, these two ‘tax reform’ initiatives could reduce municipal issues, which means fewer city-financed infrastructure projects as the costs of infrastructure rises.

Elimination of the tax-exempt status of municipal bonds would reduce the value of bond issues, as the interest rates would increase to compete with the corporate sector for capital. The municipal bond market would most likely require a premium from municipal issuers that, assuming all other things equal, could possibly raise the borrowing costs to cities by some 2 percent more or less. A 200 basis point penalty would probably diminish the volume of municipal bond issuances.

A second tax reform proposal would reduce both the individual and the corporate income tax rates. There appears to be little disagreement that tax rates will be reduced, but at what cost? If the tax-exempt status of municipal bonds is preserved, lowered income and corporate tax rate schedules could reduce the attractiveness of tax-exempt bonds.  Reducing the top marginal tax rate from 39.6 percent to 33 percent or lower would require the market to increase the interest rates on municipal bonds to compensate investors. City investment in infrastructure would most likely fall.

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Ellis Island has come to embody America’s symbol as a melting pot. The debate around “sanctuary cities” goes beyond ideological debates around America’s immigration policy. (Getty Images)

Sanctuary cities. Many of the nation’s largest cities have declared themselves sanctuary cities, by which they mean that they have chosen to limit the voluntary role cities play in federal immigration enforcement.

Under the U.S. Constitution, immigration is a federal (as opposed to state or local) responsibility. Although cities may choose to cooperate with federal authorities, these cities argue that they will not divert city resources to fulfill a federal responsibility. Cities that have declared themselves as sanctuaries do so from a variety of positions. Philadelphia, for example, refers to itself as a 4th Amendment city, meaning that the city refuses to hold persons without a warrant.

President Trump’s Enhancing Public Safety in the Interior of the United States executive order, signed earlier this week, directs his Secretary of Homeland Security and Attorney General to prohibit federal grants going to cities and other jurisdictions that do not comply with their interpretation of immigration enforcement law. In other words, President Trump appears to be trying to “make good” on his promise to shut off federal funding to sanctuary cities. While it remains unclear which and to what extent cities will be affected by this order, it very well could spur enormous consequences if it emboldens Congress to amend legislation governing the distribution of federal funds. Reconsideration and passage of legislation similar to a failed bill that was introduced in 2016, called the “Stop Dangerous Sanctuary Cities Act”, would wreak considerable havoc for cities.

Chicago, for example, receives nearly $1 billion from federal sources, as does San Francisco; New York City’s federal revenues amount to $7 billion. One estimate of withdrawing federal funds to Chicago and four sister agencies of the city places the impact at some $3.6 billion. And other sanctuary cities receive funds, ranging from federal COPs money to CDBG, which could be in danger if Congress approves.

Even should the penalty for being a sanctuary city be restricted to just ‘policing’ grants, as has been proposed, the impact could still challenge the financial stability of cities. And given cities’ fiscal positions, withholding any federal support would trouble cities. City finances have yet to rebound to pre-Great Recession levels.

An Urban Agenda?

President Trump has other people-based proposals that will have an urban impact, such as reforming primary and secondary education, modifying federal housing programs, and overhauling the Affordable Care Act – but these are broad social issues that affect people residing in cities and rural areas alike. Yet, because the majority of the U.S. population today resides in cities, shifts in these policy areas will disproportionately impact local governments. Any people- and place-based proposal that affects cities or city residents will affect the health, safety and welfare of the American people, and they will affect the nation’s GDP.

Cities are resilient, and cities can adjust to these and other shifts in the federal landscape depending in large part on how much local autonomy they possess. And the relative capacity of cities to adjust to changing circumstances is governed by states. Resiliency depends in large part by how much decision-making authority states allow. Given the numerous policy arenas that Trump has said he will change, cities need to be nimble. To be nimble, states must work with cities so they can adequately adjust and continue to be the economic engines of the nation.

michael_pagano_125x150About the author: Dr. Michael Pagano is the dean at the University of Illinois at Chicago’s College of Urban Planning and Public Administration. Follow him on Twitter @MichaelAPagano