President Trump’s recent executive order, “Enhancing Public Safety in the Interior of the United States,” promises an era of unprecedented cruelty and, like President Trump’s other plans on immigration, is dissociated from factual and legal reality.
President Trump was elected in part because of his anti-immigrant policies. Making “sanctuary” a dirty word was part and parcel of that platform, as was the strategy he pursues today—invoking “public safety” as the justification for increased interior enforcement and attacks on sanctuary jurisdictions. But studies have conclusively rejected the factual grounding for his anti-sanctuary stance—the identification of immigrants with criminality—as a myth.
Although there were just a few dozen sanctuary cities as recently as 2010, by some estimates there are now over 500 “sanctuary” jurisdictions scattered across the United States. This includes two states (California and Connecticut) that have statutory limits on cooperation with federal immigration enforcement.
What caused this tidal wave of sanctuary policies? While different jurisdictions have pursued different local policies (including the creation of diverse, inclusive communities; the elimination of racial and ethnic discrimination; and flat-out resistance to federal immigration policies that have been described as inhumane), there is no doubt that the most prevalent reason for the wave of sanctuary policies adopted since 2014 has been a legal one.
The Fourth Amendment prohibits warrantless arrests except those based on probable cause. And a series of judicial decisions (from federal courts in Rhode Island, Pennsylvania, and Oregon) from early 2014 cast doubt on the practice of using federally issued immigration “detainers” to continue imprisoning in local jails noncitizens who would otherwise be entitled to release.
These decisions acquired sufficient force that the Obama administration was forced to scrap the centerpiece of its interior immigration enforcement program. Far from being “popular and successful,” Secure Communities was wildly unpopular and legally doomed. On Nov. 20, 2014, pointing to “the increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment,” then Secretary of the Department of Homeland Security Jeh Johnson declared an end to the program.
Many of the “sanctuary” policies that President Trump and the Republicans have in their sights for funding cuts are nothing more than policies limiting the use of detainers. Put more simply, they are policies for obeying the Fourth Amendment. Just in this month, a state court in New York, and federal courts in Minnesota, Texas, and Rhode Island (where the court cautioned, “that a United States citizen was held in prison on an erroneous immigration detainer without probable cause for even one night should concern all Americans”) have added to the drumbeat of decisions establishing this basic legal fact.
A fifth decision, from a federal court in California, dealt several important blows to Trump’s plans. In July 2015, the shooting death of Kathryn Steinle by an undocumented man who had been deported five times previously reignited the sanctuary city debate. The case became the cornerstone of candidate Trump’s immigration policy, and particularly his attack on sanctuary cities—he repeatedly invoked the case, using racially coded language, to exaggerate the threat presented by immigrants. He mentioned Ms. Steinle when he accepted the Republican nomination, and when he outlined his immigration platform.
On Jan. 6, though, a federal court dismissed a lawsuit brought against San Francisco city officials, which had essentially alleged that San Francisco’s sanctuary policy caused Ms. Steinle’s death. The court concluded there was no legal theory by which city officials could be held liable. Additionally, the decision provides legal support for one common type of sanctuary policy—the refusal to provide federal immigration officials with information concerning a state or local prisoner’s upcoming release date. Considering a law which has been regularly invoked to claim that sanctuary policies “flout federal law,” the court held that “no plausible reading of [the law] encompasses the release date of an undocumented inmate.”
The message of these decisions is clear. If the self-proclaimed “law-and-order candidate” is going to follow the law as president, he would do well to abandon his attack on sanctuary cities.
Christopher Lasch is an associate professor at the University of Denver Sturm College of Law, where he studies the intersection of immigration and criminal law.
The views expressed by authors are their own and not the views of The Hill.