Understanding Trump’s “sanctuary city” executive order

Today President Trump signed an executive order which, as promised, proposes to withhold federal funding from so-called “sanctuary cities.” And Mayor Murray, along with some Council members, stood their ground.

Back in November I wrote a summary of what the city could lose in federal funding, but at the time is was difficult to tell whether Trump would really follow through, and if so how he would structure such an order. Now that he’s clarified that, it’s time to examine exactly what his executive order, and the local and federal laws, say.

To begin: there’s no standard definition of a “sanctuary city,” and it has been codified in law differently across the cities that refer to themselves using that term. So that doesn’t help us; we’ll need to look at exactly what Seattle’s laws say, and how that compares to what Trump is implicating in his executive order.

Seattle Municipal Code 4.18 is the local ordinance that defines the city’s behavior:

4.18.010 – Cooperation with enforcement of federal immigration laws. City officers and employees are directed to cooperate with, and not hinder, enforcement of federal immigration laws.
4.18.015 – Inquiries into immigration status.

A. Notwithstanding Seattle Municipal Code Section 4.18.010, unless otherwise required by law or by court order, no Seattle City officer or employee shall inquire into the immigration status of any person, or engage in activities designed to ascertain the immigration status of any person.

B. Seattle Police officers are exempt from the limitations imposed by subsection A, above, with respect to a person whom the officer has reasonable suspicion to believe: (1) has previously been deported from the United States; (2) is again present in the United States; and (3) is committing or has committed a felony criminal-law violation.

In other words, city employees can’t ask about immigration status but otherwise must cooperate with enforcement of federal immigration laws. And police officers CAN ask in specific circumstances.
Now let’s look at what Trump’s executive order actually says. First, there’s the racist saber-rattling:
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.  These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.

Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation.  Many of these aliens are criminals who have served time in our Federal, State, and local jails.  The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.

Then there’s the specific action that Trump directs:

Sec. 9.  Sanctuary Jurisdictions.  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. 

(a)  In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], 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.

(b)  To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c)  The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

The most pertinent part is in boldface above. Finally we have a definition of a “sanctuary jurisdiction” from Trump: one that willfully violates the federal law 8 U.S.C. 1373. So let’s go look at that:
(a) In general. 
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities.
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to respond to inquiries.
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
Section (c) is all about the INS’s responsibilities, so it’s irrelevant to this discussion. Arguably, section (b) is also irrelevant, since it seems to apply to “agencies” — federal agencies. This law uses “government entities” every other time it refers to a local jurisdiction, so it is hard to interpret the word “agency” here to refer to a city government. Even if Section (b) did apply to cities, Seattle’s ordinance doesn’t prohibit or restrict any of the three activities highlighted.
That leaves us with Section (a) to be concerned with. There’s nothing in the Seattle Municipal Code that prevents city employees from sharing any immigration-status information they have with the INS (perhaps there should be, but there currently isn’t). So then the issue comes down to what it means to “receive information” from the INS. Is a prohibition on inquiring about immigration status the same as a prohibition on receiving information from the INS on immigration status? Putting aside for the moment the issue of unsolicited communications from the INS, if “receiving information” is an answer to a question, can the city ban its employees from asking the question in the first place? Can the federal government prohibit such a ban? Deeper down the rabbit hole we go…
In Arizona vs. U.S. the Supreme Court held that enacting and enforcing immigration law is a federal power alone. In Printz vs. U.S. it held that the federal government can’t conscript local (and state) police officers into enforcing federal laws — it must do that enforcement itself. Taken together, these rulings strongly suggest that the federal government can’t force Seattle city employees to inquire about immigration status. So the only remaining interpretation is that the city can’t tell its employees to cover its ears whenever the INS tries to talk to them. And the Seattle Municipal Code doesn’t do that.
That brings us full-circle to the original question: is Seattle violating 8 U.S.C. 1373?  Probably not — and so by extension it isn’t a “sanctuary city” by the Trump administration’s chosen definition. But of course I’m not a lawyer, and at the end of the day the binding answer may come from nine Supreme Court justices after a long legal battle through layers of federal courts.  Even if Seattle is found in violation, Trump still may not have the right to withhold all federal funding.  In South Dakota vs. Dole, the Supreme Court ruled that Congress (not the President) can place conditions on federal funding, but those conditions can’t be coercive; further, they must be relevant to the goal of the funding itself. So for example Congress could condition some federal funding for local immigration programs on compliance with 8 U.S.C. 1373, but it can’t condition transportation funding on compliance with an immigration law, and it certainly can’t condition all federal funding on it. Trump’s executive order fails on three accounts: it usurps Congress’s Constitutional authority to appropriate funding; it conditions unrelated federal funding to a sanctuary city on compliance with an immigration law; and it’s clearly coercive.
Trump’s executive order has another problem: in granting to the Secretary of Homeland Security the authority to designate a jurisdiction as out of compliance with 8 U.S.C. 1373, it usurps the authority of the Judicial Branch. The executive branch can sue the City of Seattle to get a judge to make that determination, but it can’t do it unilaterally.
Mayor Murray and other (really pissed off) City elected officials agree. Other legal experts also agree. Murray and City Attorney Pete Holmes today committed to fighting the executive order in court if the Trump administration tries to apply it to Seattle — though Murray also ordered city departments to make contingency plans in case the federal funds are withheld.
You have to give Trump credit: he hasn’t even been in office for a week and he’s already usurping power from both the legislative and judicial branches — in the same executive order.
Expect this to take months, if not years, to play out in court if the Trump administration presses the issue.
As an aside, Trump’s executive order has all sorts of other eyebrow-raising stuff in it, such as a directive to hire 10,000 more immigration officers, another to empower state and local law enforcement officials to enforce immigration laws, and some serious scare-mongering about “removable aliens” (aka undocumented immigrants):
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation.  Many of these aliens are criminals who have served time in our Federal, State, and local jails.  The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
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