by Pratheepan Gulasekaram, Professor of Law, Santa Clara University
Last week, Attorney General Jeff Sessions issued a “last chance” warning to several “sanctuary cities.” The letters - sent to Cook County, Illinois; Chicago, Illinois; New Orleans, Louisiana; New York, New York; and Philadelphia, Pennsylvania – informed local officials that their policies regarding investigation of an individual’s immigration status, or their reporting of the same, may be in violation of federal law. Further, if they do not provide additional assurances that they are in compliance with the specified federal law by October 27th, they risk losing certain law enforcement grants (Byrne/JAG funds) that the Department of Justice (DOJ) administers to localities to augment their policing, equipment, prosecution, corrections, drug treatment plans, victim or witness programs, or other related efforts.
These ominous letters, with accompany rhetoric from the Attorney General, continue the Trump Administration’s months-long campaign against cities that have exercised their constitutionally-protected prerogative to decline participation in federal immigration enforcement efforts. As has become routine for Sessions, this latest round includes the same misrepresentations linking immigrants and criminality that he and the President have consistently spewed, with the Attorney General repeating the falsehood that sanctuary policies make cities more dangerous.
In addition to having to rely on unsupportable claims linking immigrants to systemic public safety threats, it is also telling that the DOJ is forced to undertake this crackdown through administrative fiat, rather than with broad congressional support. Indeed, the executive branch has been forced to go it alone precisely because it has not been able to get federal legislative backing for its heavy-handed approach to sanctuary cities. Sessions himself is no stranger to these failed legislative efforts, having introduced an anti-sanctuary measure in 2005 as part of a homeland security bill when he was a Senator. More recently, Republican House members have introduced bills that might strengthen the Administration’s ability to conscript state and local governments and institutions in the manner proposed by Sessions, but all have failed to pass both houses or make it out of committee. This lack of urgency would seem odd if reality was even close to as the dire picture painted by Sessions and Trump: A state of lawlessness and rampant criminality in our cities, fueled by the presence of unauthorized immigrants.
Not surprisingly, the Administration’s unilateral anti-sanctuary crusade has suffered defeat after defeat in courts. A few courts have now held that localities violate the Constitution when they hold noncitizens solely for immigration purposes, thereby limiting the Administration’s attempts to force jurisdictions to honor federal immigration detainer requests. Further, in suits by San Francisco and Santa Clara counties, a federal district court ruled that Trump’s vague threat to strip away unspecified federal funding from cities that maintained non-communication and anti-detainer policies was unlawful. Even after Sessions attempted to narrow the scope of the federal grants at issue by issuing a DOJ memorandum, that court declined to change its order or the scope of its injunction. More recently, in a suit by the city of Chicago, another federal district court enjoined the DOJ’s implementation of any new conditions on the receipt of Byrne/JAG funds. Specifically, the court rejected the DOJ’s unilateral attempt to add “notice” and “access” conditions, which would have required local authorities to notify federal authorities about the release date of immigrants in their custody, and required localities to provide immigration authorities access to local correctional facilities.
Last week’s letter to the five jurisdictions relies on the one part of the DOJ’s plan that the Northern District of Illinois opinion left in place, pending further litigation: That court did not preliminarily enjoin the ability of the DOJ to require compliance with 8 USC 1373 as a condition of receiving Byrne/JAG funds. Section 1373 is a prohibition on a prohibition; it is a federal law that prevents states and localities from stopping voluntary communication between their officers and the federal government on immigration status or citizenship of individuals. The provision has no remedy or penalty attached as part of its text, and has, until recently, only been used to preempt conflicting local law.
The DOJ’s current attempt to specify compliance with § 1373 as a condition of receiving federal grants will certainly be challenged and will provide federal courts an opportunity to opine on the underlying constitutionality of § 1373 and the DOJ’s unilateral attempt to leverage it. Although I do not address those concerns here, others have argued that the DOJ’s attempt to use § 1373 in that manner may be unconstitutional as a matter of anti-commandeering, Spending Clause, and separation of powers principles. Indeed, even the Illinois district court, in leaving the DOJ’s use of § 1373 intact, suggested reasons why a higher court might find the provision unconstitutional.
Moreover, even if § 1373, and the DOJ’s conditioning of Byrne/JAG grants on compliance with it, are both ultimately upheld in court, very little may turn on it. As I have written before for this blog, the overwhelming majority of state and local sanctuary policies do not institute gag orders for their officers and thus do not violate the provision. Most sanctuary policies instead limit information collection during investigations or arrests, or limit the use of local resources for such communications. The DOJ admitted as much last year when it responded to Representative John Culberson’s (R-TX) letter asking the DOJ to look into § 1373 violations. Thus, the DOJ’s recent warnings may turn out to be more bark than bite, even if courts ultimately give § 1373 - and the DOJ’s leveraging of it – a generous interpretation.
Beyond the losses in court, the current state and local legislative landscape suggests that the Administration’s anti-sanctuary crusade is backfiring. Rather than breaking the will and budgets of localities, Sessions’ efforts have pushed states and cities to dig in their heels, passing non-cooperation and anti-detainer policies that are broader in scope and clearer than before, and undertaking litigation that has repeatedly chastened the Administration’s tactics. Indeed, city policies that arguably run afoul of § 1373 may be the least of Session’s concerns come January, when California’s SB 54 – the state sanctuary act – goes into effect. The “California’s Values Act” creates statewide prohibitions on certain types of cooperation with federal authorities, and signals the state’s clear intention to oppose any heightened federal enforcement efforts. Perhaps more importantly, as I have recently detailed in a co-authored draft article (“Sanctuary Networks”, with Professor Rose Villazor), the Trump/Sessions anti-sanctuary campaign has galvanized a host of non-governmental forms of sanctuaries from a variety of institutions and organizations. These educational institutions, employers, social network groups, and religious organizations cannot be coerced and bullied by the threat of removing DOJ grants.
The reality is that while immigrants generally, and sanctuary policies specifically, do not present the public safety threats claimed by the Administration, the existence of sanctuary cities and institutions do discredit the legitimacy and truthfulness of Trump’s campaign promises and nativist misrepresentations promoted by immigration ideologues like Sessions. The emerging policy and judicial responses to these types of crackdowns suggest that sanctuaries are not only here to stay, but that they are expanding and becoming more resolute.