DOJ finally defines a “sanctuary city,” narrows its threatened financial penalties

Yesterday Attorney General Jeff Sessions issued a memo that defines a “sanctuary city” for the purposes of interpreting President Trump’s executive order that withholds federal funding from such cities.

According to the memo:

the term “sanctuary jurisdiction” will refer only to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.”

8 USC 1373 is the federal law that prohibits local jurisdictions from preventing or restricting a government official from sending to or receiving from a federal immigration officer information pertaining to immigration status of an individual.

This definition of “sanctuary city” is significant for two reasons. First, the DOJ has been very cagey for several months in not actually providing a definition for “sanctuary jurisdiction” while it cast about threats. Second, it excludes a second major issue: whether local jurisdictions must honor requests from federal immigration officers to detain individuals until the feds show up to take them into custody, when local law enforcement has no legal justification to hold them. It is widely believed that the detainer requests are unconstitutional. The DOJ has apparently decided not to fight that battle, knowing that several cities are happy to test it in court.

But even the legality of withholding funds for noncompliance with 8 USC 1373 is in question. Last month, a federal judge in San Francisco granted a nationwide preliminary injunction against the Trump administration, on behalf of San Francisco and Santa Clara, preventing the government from implementing Trump’s executive order withholding funding.  The judge affirmed that the federal government may not withhold funding to compel specific behavior from local jurisdictions, and to the extent that it conditions new funding on compliance, the intended use of the funds must be tied to the goal of the compliance — so for example, the feds can’t condition affordable housing funds on compliance with an immigration policy.

Perhaps in response to that ruling, Session’s memo lays out another change: it narrows the funds subject to withholding for noncompliance to only grants from the Department of Justice and the Department of Homeland Security. That is still much broader than “immigration law,” and will likely run afoul of the judge’s interpretation of whether the funds’ intended uses are aligned closely enough with 8 USC 1373. So this move is unlikely to get the Trump administration out from under the judge’s injunction.

Sessions has another legal battle still to fight: whether 8 USC 1373 itself is constitutional, a question that has no direct case law precedent. The Tenth Amendment has been interpreted by the Supreme Court to mean that the federal government may not conscript local law enforcement into enforcing federal laws; yet immigration law is clearly under federal jurisdiction, so 8 USC 1373’s requirement that local officials participate in its enforcement seems to be in conflict. That issue is still before the judge in San Francisco and will be tried in the coming months. If the federal government loses that argument, then even Sessions’ narrowed interpretation of the executive order won’t stand. But expect the case to go all the way to the Supreme Court before being finally resolved.

In late March, the City of Seattle filed its own lawsuit against the Trump administration. Its approach was to ask the judge to certify that Seattle is, in fact, compliant with 8 USC 1373.  Seattle’s “welcoming city” policy states that local law enforcement may not ask about immigration status, and may not record such information. It’s silent on exchanging such information with the federal government, and requires local law enforcement to comply with all applicable federal laws. At least on paper, there is no conflict with 8 USC 1373. The DOJ has yet to file a response in Seattle’s lawsuit. If the judge certifies compliance, then Seattle will not be a “sanctuary city” by Sessions’ definition and its funding will be safe.

At least for the moment, that is. Despite severely narrowing Trump’s executive order and the fiscal harm it threatened, Sessions nevertheless uses his memo to throw around a few more threats. First, he will continue to complain about jurisdictions that refuse detainer requests:

nothing in the Executive Order limits the Department’s ability to point out ways that state and local jurisdictions are undermining our lawful system of immigration or to take enforcement action where state or local practice violate federal laws, regulations, or grant conditions.

Also, in addition to continuing to argue that he has broad power to condition funding to compliance, Sessions hints that he will use DOJ funding grants to drive compliance specifically with immigration law in the future:

The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373. Separate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department’s law
enforcement priorities. Consistent with this authority, over the years, the Department has tailored grants to focus on, among other things, homeland security, violent crime (including drug and gang activity), and domestic violence. Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration.

As I’ve written before, the bulk of Seattle’s federal grants are for transportation, housing, and human services. Those are now out of Sessions’ grasp. Unfortunately Trump’s budget, released yesterday, proposes massive cuts to many of those programs; assuming the Republicans in Congress accede to the President’s wishes, the city’s reprieve for its federal funding may not be long-lived.

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