Executive order on sanctuary cities is unlikely to threaten their federal funding
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President Trump’s new Executive Order relating to so-called “sanctuary cities” exposes a potential Achilles heel facing the new administration.

Sec. 9 of the Order clarifies that “sanctuary jurisdictions” are those that “willfully refuse to comply with 8 U.S.C. 1373.” The administration intends to withhold Federal grants from those jurisdictions, “except as deemed necessary for law enforcement purposes,” and from any that have a policy that “prevents or hinders the enforcement of Federal law."

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In fact, the EO is extremely narrow in scope, and the many reports of cities like Boston and Los Angeles being under threat of losing millions of dollars are simply wrong.

8 U.S.C. 1373 bans state and local policies that prohibit the sharing of information with the federal government about the immigration status of an individual.

However, while there is no uniform set of actions being implemented by sanctuary cities, few, if any, have policies in place that actually conflict with this particular federal law. Instead, they generally do one of two things, or both:

1) Ban law enforcement from asking a person about their immigration status.

2) Prohibit keeping a person in jail beyond the time they’re required to be there upon receipt of a federal immigration detainer request.

Number one basically creates an end-run. This won’t trigger a withdrawal of federal funds under 8 U.S.C. 1373 because agencies can’t share information they don’t have.

Number 2 has already proven to be particularly troublesome for the federal government, and will likely continue to be so.

As the U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) notes on its website, the first and foremost factor impacting its enforcement capability is “the level of cooperation from state and local law enforcement partners.”

With just over 5,700 agents nationwide, ERO reported removal of “240,255 aliens in FY 2016.” In spite of the supposedly high number of sanctuary cities nationwide, this number actually represented an uptick from 2015 due partly to what ERO called “increased state and local cooperation.”

At this rate, removing anywhere close to the at least 11 million unauthorized immigrants in the country right now seems impossible.

It would appear that Trump recognizes this as well.

Sec. 7 of his order calls for the hiring of 10,000 additional immigration officers. But should cities continue their refusal to help in some situations, and should some states implement policies to do the same as California did in 2014, even tripling the number of ERO officers is unlikely to make a dent in that 11 million.

Additionally, under the anti-commandeering doctrine, the Supreme Court has long-held that the federal government cannot force state or local governments to implement or enforce federal laws or regulatory programs.

For example, in the 1842 case, Prigg v. Pennsylvania, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.

And in the 2012 case, N.F.I.B v. Sebelius, the Court held that states can’t be forced to expand their Medicaid programs, even under the threat of losing federal funding, as the Affordable Care Act attempted to do.

While it’s possible the Trump administration will ignore this long-standing precedent and claim city or state refusal to help enforce federal immigration law is the same as a policy that  “prevents or hinders” federal enforcement, Sec. 8 of Trump’s order seems to indicate that this outcome is unlikely.

Here, a policy is clearly laid out whereby the federal government intends to “empower State and local law enforcement agencies … to perform the functions of an immigration officer.” To achieve that goal the Secretary of the Department of Homeland Security (DHS) is directed to work with governors and local officials to “enter into agreements” to perform federal immigration enforcement duties. The order also includes a big caveat, the agreements will be made “with the consent of State or local officials, as appropriate.”

In short, while Trump is certainly ramping up the pressure to fulfill campaign promises to take on “sanctuary cities,” should cities and states hold fast in their policies, they’ll likely come out on top in court, and on the ground.

Michael Boldin is the founder and executive director of the Tenth Amendment Center, based in Los Angeles.


The views expressed by authors are their own and not the views of The Hill.