Justice Department steps up rhetoric on “sanctuary cities”

This morning, U.S. Attorney General Jeff Session delivered remarks on the topic of so-called “sanctuary cities” and how the Trump Administration would respond, amping up the rhetoric with some specific threats — though not necessarily ones he can keep.

His remarks  are interesting in both what the do and don’t say. Neither he nor Trump have given a specific definition of a “sanctuary city,” though he did name a specific US law (8 USC 1373) that he looks at as a key test of a city’s compliance, as well as making reference to cities refusal to honor ICE’s “detainer requests” as another issue.

But what’s more newsworthy — and distressing — is that not only did he threaten to withhold federal funding (which the executive branch can’t do under settled case law), but today he threatened to try to “claw back” previously granted funds:

The Department of Justice will also take all lawful steps to claw-back any funds awarded to a jurisdiction that willfully violates Section 1373. 

One of the problems with throwing around the “sanctuary city” term is that it muddies the waters about which cities are doing things that the US government doesn’t like. You’ll notice that in most cases Seattle’s city leaders have moved to referring to it as a “Welcoming city” rather than a “sanctuary city” to try to provide an important distinction. And it’s important to understand where Seattle stands in relation to the two issues the Trump Administration is raising: compliance with 8 USC 1373, and honoring ICE detainer requests.

On the first issue: 8 USC 1373. Here’s what that law says:

  • Seattle can’t prohibit sending, requesting or receiving from ICE information regarding the citizenship or immigration status of an individual;
  • Seattle can’t prohibit maintaining information on citizenship or immigration status of an individual at any level of government;
  • Seattle can’t prohibit exchanging citizenship or immigration status information with any other local, state or federal agency.

But Seattle doesn’t do any of those things. Seattle’s carefully-worded ordinance simply says that its employees are prohibited from asking an individual about their 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 exempted 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.

It goes on:

Nothing in this Chapter shall be construed to prohibit any Seattle City officer or employee from cooperating with federal immigration authorities as required by law.

It doesn’t limit conversations with other government agencies, and there is nothing in 8 USC 1373 that requires city employees to inquire as to immigration status. It would be very difficult to argue in court that Seattle is in violation of the federal law.

Then there’s the second issue: honoring detailer requests. First, Seattle refers all detainer requests to King County, which runs the jail and detention facilities throughout the county on behalf of the city and other jurisdictions within the county. Second, as I have described before (as have many others), in many cases ICE detainer requests are unconstitutional.

This morning Attorney General Session engaged in some serious scaremongering to try to make the case that ICE detainer requests are important and that those jurisdictions that refuse to honor them are making the country less safe.

Unfortunately, some states and cities have adopted policies designed to frustrate the enforcement of our immigration laws.  This includes refusing to detain known felons under federal detainer requests, or otherwise failing to comply with these laws.  For example, the Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor Immigration and Customs Enforcement (ICE) detainer requests with respect to individuals charged or convicted of a serious crime.  The charges and convictions against these aliens include drug trafficking, hit and run, rape, sex offenses against a child and even murder.     
Such policies cannot continue.  They make our nation less safe by putting dangerous criminals back on our streets.

For the record, King County’s policy is that they will honor any detainer request that is accompanied by a court-issued warrant, or if the person has been previously convicted of violent crime. In those cases, the detention is constitutional.

Sessions’ saber-rattling got a quick response from the Mayor and the City Attorney, as well as from the King County Executive. All three say essentially the same thing: what the city and county are doing is legal and constitutional, and they refuse to be bullied.

The one other interesting statement in Sessions’ remarks that raises the stakes is this:

 Moreover, the Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance with Section 1373 as a condition for receiving these awards. 

Fortunately, Seattle shouldn’t have any trouble certifying that it is compliant. The Justice Department hasn’t explicitly articulated an interpretation of that law that reads otherwise, and it hasn’t announced any jurisdictions that it believes to be in violation — it’s still just making vague, general threats hoping to scare cities into obedience. Last week it did issue its first list of jurisdictions that refused ICE detainer requests, but it has neither stated categorically that doing so is grounds for denying funds, nor has it argued that doing so violates 8 USC 1373. So as City Attorney Pete Holmes pointed out today, for all of Sessions’ big words, he did little to clarify what actions will cause the federal government to try to withhold funding.

The next move is the Trump Administration’s: local government has called their bluff, and the feds need to decide whether they are willing to risk going to court over withholding federal funding. If they do, Seattle is unlikely to be the first city they withhold funds from, since their case is so weak: they can’t point to a federal law that Seattle is breaking. Further, they also risk the wrath of Congress, since they are usurping the legislative branch’s power to appropriate funds — and that is also settled case law.

We’ll see whether Trump and Sessions decide to put force behind their threats.