House tries to rewrite rules for sanctuary cities

Yesterday the House of Representatives passed a bill that would rewrite the rules for so-called “sanctuary cities,” and leave Seattle out of compliance — that is, if the Senate also approves it and the courts find it constitutional, neither of which look likely.

As I’ve written on several occasions before, the Trump administration has threatened to withhold funding from “sanctuary cities.” It centers around two issues:

  • whether a city complies with 8 USC 1373, which prohibits state and local jurisdictions from passing laws to stop law enforcement officers sharing immigration status information with the Department of Homeland Security;
  • whether a city honor “detainer requests,” which ask local jurisdictions to detain suspected illegal immigrants without a warrant in order for the feds to come arrest them.

Seattle was one of several cities and counties that sued the Trump administration to clarify the definition of “sanctuary city.” In the end the Department of Justice defined it as point #1 above: noncompliance with 8 USC 1373. Technically, Seattle complies with that federal law, since it prohibits local law enforcement from asking about immigration status, but doesn’t prevent sharing its nonexistent information with federal officials.

But the bill that the House passed yesterday changes the rules. It would extend 8 USC 1373 to now say:

Notwithstanding any other provision of Federal, State, or local law, no Federal, State, or local government entity, and no individual, may prohibit, or in any way restrict, a Federal, State, or local government entity, official, or other personnel from undertaking any of the following law enforcement activities as they relate to information regarding the citizenship or immigration status, lawful or unlawful, the inadmissibility or deportability, or the custody status, of any individual:

(1) Making inquiries to any individual in order to obtain such information regarding such individual or any other individuals.

“(2) Notifying the Federal Government regarding the presence of individuals who are encountered by law enforcement officials or other personnel of a State or political subdivision of a State.

“(3) Complying with requests for such information from Federal law enforcement entities, officials, or other personnel.”;

Seattle’s laws would run afoul of point 1 above.  It also codifies the grant eligibility rules that Trump’s executive order laid out.

The bill also changes the rules on detainer requests, which have not had a clear basis in law before. The bill would give DHS the authority to issue them if probable cause exists (which it also defines):

In the case of an individual who is arrested by any Federal, State, or local law enforcement official or other personnel for the alleged violation of any criminal or motor vehicle law, the Secretary may issue a detainer regarding the individual to any Federal, State, or local law enforcement entity, official, or other personnel if the Secretary has probable cause to believe that the individual is an inadmissible or deportable alien.

Probable cause is deemed to be established if—

(A) the individual who is the subject of the detainer matches, pursuant to biometric confirmation or other Federal database records, the identity of an alien who the Secretary has reasonable grounds to believe to be inadmissible or deportable;

(B) the individual who is the subject of the detainer is the subject of ongoing removal proceedings, including matters where a charging document has already been served;

(C) the individual who is the subject of the detainer has previously been ordered removed from the United States and such an order is administratively final;

(D) the individual who is the subject of the detainer has made voluntary statements or provided reliable evidence that indicate that they are an inadmissible or deportable alien; or

(E) the Secretary otherwise has reasonable grounds to believe that the individual who is the subject of the detainer is an inadmissible or deportable alien.

If the Federal, State, or local law enforcement entity, official, or other personnel to whom a detainer is issued complies with the detainer and detains for purposes of transfer of custody to the Department of Homeland Security the individual who is the subject of the detainer, the Department may take custody of the individual within 48 hours (excluding weekends and holidays), but in no instance more than 96 hours, following the date that the individual is otherwise to be released from the custody of the relevant Federal, State, or local law enforcement entity.

It goes on further to grant immunity to local jurisdictions who comply with federal detainer requests, saying that they are operating under federal authority:

A State or a political subdivision of a State (and the officials and personnel of the State or subdivision acting in their official capacities), and a nongovernmental entity (and its personnel) contracted by the State or political subdivision for the purpose of providing detention, acting in compliance with a Department of Homeland Security detainer issued pursuant to this section who temporarily holds an alien in its custody pursuant to the terms of a detainer so that the alien may be taken into the custody of the Department of Homeland Security, shall be considered to be acting under color of Federal authority for purposes of determining their liability and shall be held harmless for their compliance with the detainer in any suit seeking any punitive, compensatory, or other monetary damages.

The bill also grants authority for the federal government to withhold grant funding from specific grant programs. This solved a problem for the Trump administration since the executive branch doesn’t have discretion to withhold funds that Congress appropriated. It also hews to the same restriction that the DOJ memo eventually had to concede to: narrowing the funding at risk of being withheld to only those grants tied to law enforcement and immigration. Courts have ruled that the government may not place conditions on funding unrelated to the intended purpose of the that funding (so they couldn’t, for example, condition transportation funding on compliance with immigration funding).

It’s important to state up-front that this bill has not passed into law, and is unlikely to gain 60 votes in the Senate to overcome a filibuster from Democrats. But even if it did, and was passed into law, these changes fix a few of the cosmetic statutory problems with 8 USC 1373 and with detainer requests but they don’t change the fact that both are clearly unconstitutional.

The Supreme Court has ruled repeatedly that the Tenth Amendment prohibits the federal government from compelling state and local jurisdictions to enforce federal laws, including immigration law.  8 USC 1373 as it is written today does exactly that, and does so in even stronger terms under the new bill. The feds can offer to extend federal authority to local jurisdictions’ law enforcement officers, but those jurisdictions can’t be forced to accept it. The constitutionality of 8 USC 1373 hasn’t been tested in courts, but it seems unlikely to survive if it is. A similar argument can be made for detainer requests: local jurisdictions can’t be compelled to detain someone under federal laws unless a warrant is issued. And for the conditioned funding: the feds can’t use funding as a punitive measure against a state or local jurisdiction when it doesn’t like certain activities that are perfectly legal.

On the detainer requests, it’s interesting that the bill’s language doesn’t actually require local jurisdictions to honor them; it simply provides a legal basis for DHS to issue them, and legal “air cover” for those jurisdictions that do choose to honor them. But along with that carrot comes a stick: it authorizes a private cause of action for third parties to sue if they are victims of crimes committed by people who were released by a local jurisdiction despite the existence of a federal detainer request:

Any individual, or a spouse, parent, or child of that individual (if the individual is deceased), who is the victim of a murder, rape, or any felony, as defined by the State, for which an alien (as defined in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3))) has been convicted and sentenced to a term of imprisonment of at least one year, may bring an action against a State or political subdivision of a State in the appropriate Federal or State court if the State or political subdivision released the alien from custody prior to the commission of such crime as a consequence of the State or political subdivision’s declining to honor a detainer issued pursuant to section 287(d)(1) of the Immigration and Nationality Act.

This bill was rammed through quickly and quietly. It bypassed committee-level activity and was sent straight to the House floor. It was closed to amendments, and only saw one hour of floor debate. It had one sponsor and 15 co-sponsors, all conservative Republicans.  The vote to approve the bill went straight down party lines: 235 Republican ayes, and 190 Democratic noes.