by Pratheepan Gulasekaram, Professor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)
This past week, Donald Trump issued several executive orders limiting immigration and foreboding greater enforcement. The headlines for the past few days have been dominated by his “Muslim ban,” a clumsy, crude and cruel attempt to block any immigration from seven majority-Muslim nations, a complete ban on all refugees for four months, and an indefinite ban on Syrian refugees. Also garnering significant attention is his order reinvigorating wall-building at the U.S.-Mexico border. That order, along with his directive to massively increase enforcement officers may or may not materialize, as they will likely require massive budget appropriations that Congress may balk at. Comparatively less attention has been paid to the orders that will likely begin to reap consequences over the next several months, like the ones re-arranging enforcement priorities and dramatically expanding expedited removal processes (both, likely at the expense of due process standards and other individual liberties). Here, I want to focus on another aspect of his orders that has received comparatively less attention: Trump’s attempt to coerce state and local jurisdictions into aiding with interior enforcement.
At first blush, Donald Trump’s executive order on interior immigration enforcement reads like a death-knell to cities that maintain so-called “sanctuary” policies on immigration. It imperils state and local governments and law enforcement agencies with loss of federal funds unless they comply with a particular provision of federal immigration law. Despite his order’s menacing language, Trump’s defunding threat rings hollow.
In true Trumpian style, the executive order is long on fear-mongering, but short on substance. It avoids nuanced legal analysis, and instead opts for sweeping and intimidating language intended to scare state and local officials with major financial losses. Obviously, it is precisely this broad-brush approach that creates the climate of panic that has already caused some jurisdictions to cave to the administration’s threat and has others considering similar moves. But, legal details will matter to courts and regulators. After localities weather this immediate panic, they will be able to lawfully maintain and reaffirm their commitments to inclusive communities, regardless of immigration status.
The funding penalties in the executive order turn on section 1373 of federal immigration law, which prevents state and local entities from maintaining policies that prohibit communication with federal immigration authorities about the immigration status of individuals. Jurisdictions found in violation of this provision would become ineligible to receive federal grants. To be clear, this attachment of a financial penalty for states and localities in violation of federal law is not new or surprising. Indeed the Department of Justice for some time has monitored whether localities accepting certain federal law enforcement grants comply with section 1373, in order to receive those grants. And, federal lawmakers in the past have attempted to use that potential punishment to discipline sanctuary cities. Yet, this effort has had little or no effect on state and local policymaking for several legal and practical reasons.
First, blanket commands on how states and localities may legislate and structure their own public policy are constitutionally suspect. Hence, it is not at all clear that section 1373 will remain in force after its use as a conditional spending lever is inevitably challenged in the coming months. It bears mentioning of course, that the Second Circuit Court of Appeals invalidated a New York City ban on its officers communicating with federal officers on immigration matters because that city policy conflicted with 1373. As an initial matter, it is possible that the case was wrongly decided on federalism grounds. Even assuming its continued viability, however, because of the specific nature of New York City’s communication ban, that case did not squarely present the question whether 1373 could constitutionally override more general state or local confidentiality or communication policies. In fact, 1373 begins with the caveat, “Notwithstanding any other provision of Federal, State, or local law….” General communication bans or methods of controlling local officers’ information handling may very well fall within that exception.
Second, section 1373 does not - because it cannot - compel localities to aid federal immigration enforcement. Indeed, the National Rifle Association cemented this constitutional principle with their opposition to the Brady Handgun Bill in the mid-1990s. Emphasizing states’ rights, the Supreme Court ruled that it was unconstitutional for Congress to require county sheriffs to perform background checks before selling handguns. Applying that logic, state and local law enforcement officers cannot be conscripted into acting as immigration agents by congressional statute or presidential order.
More fundamentally, despite the executive order’s unsupported implication, virtually no existing state and local policies actually violate section 1373. The DOJ suggested as much last year when it responded to Representative John Culberson’s (R-Texas) letter asking the DOJ to look into 1373 violations. Quite simply, the overwhelming majority of state and local sanctuary policies do not institute gag orders for their officers. As a practical matter, even in jurisdictions with non-cooperation policies, individual officers likely cannot be prevented from voluntarily communicating with federal officials in their own time with their own resources. Rather than imposing outright gag orders, most policies instead limit information collection during investigations or arrests. Federal law does not – again, because it cannot – require that local police inquire about immigration status. As such, these state and local policies that merely direct their officers not to investigate or inquire about immigration status do not run afoul of the plain language of section 1373. Certainly, such policies limit the type of information any officer might possess, and thus could share, with federal authorities. But, limiting the information a local officer might collect does not violate section 1373’s specific and singular ban on communication.
Even assuming that section 1373 could be applied to states and cities that maintain non-cooperation or detainer-resistance policies, it is far from clear that Trump’s threatened withdrawal of federal funds is constitutional. It is of course true that the federal government uses funding conditions to influence a breadth of state and local behavior. And, in general, the Supreme Court has blessed this use of federal spending. But, any such conditions must be germane to the funding, and made clear to states and localities prior to their acceptance of the bargain with the federal government. Any implementation of his order that leverages housing or community development grants to ensure immigration cooperation, would likely fail this test. In addition, the size and scope of the financial penalty may determine whether states and localities have a realistic and fair chance at refusing the bargain. In any event, any attempts to pull funding would face stiff legal challenges.
Finally, the sad irony is that rather than improving interior safety, Trump’s order creates the potential to violate individual rights and harm local communities and residents. Courts in different places across the country have held city officials liable for detaining and holding immigrants without warrants, solely for immigration-purposes. These violations of the constitutional rights of individuals, incurred while responding to hold requests by federal immigration authorities, create unneeded financial and legal liability for localities. Further, these detention costs, as well as the cost of litigation and penalties must be paid by local coffers.
Moreover, taking away the funds Trump seeks to leverage – money intended to improve law enforcement resources or bolster local community development projects – would hurt the very communities and people his order purports to protect. The executive order, in effect, ignores the considered judgment of city councils, mayors, and chiefs of police, who have decided to focus on local safety issues rather than immigration enforcement. In their view, this concentration on local concerns helps them build better relationships with the communities they police and improve public safety. More tangibly, taking away law enforcement aid or vital community development grants to localities undercuts the ability of cities seeking to strengthen their infrastructure and services, and reinforce their public safety initiatives. And, if Trump’s actual concern is bolstering national security, it hardly makes sense to take away resources from law enforcement agencies that might be used to aid anti-terrorism efforts.
Ultimately, Trump’s executive order on interior enforcement is cynical political grandstanding. In the final legal analysis, however, states and localities stand on firm ground when they commit to maintaining their inclusive policies. More importantly, these acts of state and local inclusion are critical for our broader public debate on immigration policy. Over time, Trump might be able to ramp up the federal immigration apparatus to serve his blunderbuss enforcement goals. But, he should take heed of the voices and choices of dozens of states and hundreds of cities that are lawfully resisting his xenophobic immigration bluster.