President Donald J. Trump’s 10-point plan to put “America First” includes a pledge to end sanctuary cities, cities that refuse to cooperate with federal immigration officers who are seeking to apprehend and remove undocumented immigrants, by threatening to cut off their federal funds.
In 1996, Congress sought to end immigration related information-sharing restrictions with provisions in the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
PRWORA provides that:
“No state or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status … of an alien in the United States.”
IIRIRA, likewise, prohibits restrictions on a federal, state, or local governmental entity, or government official’s ability to send or receive information about a person’s “immigration or citizenship status” to or from federal immigration officers.
It states further that, no person or agency may prohibit a federal, state, or local government entity from:
- Sending information regarding immigration status to, or requesting information from, federal immigration authorities;
- Maintaining information regarding immigration status; or,
- Exchanging such information with any other federal, state, or local government entity.
On Jan. 3, 2017, Representative Lou BarlettaLou BarlettaRepublicans rush to help shape Trump’s infrastructure plan Overnight Finance: GOP makes case to fire consumer bureau chief | Republicans rush to shape infrastructure plan | Tax-writers urge Trump to fire IRS chief Trump transition members urge Rice to testify MORE (R-Penn) introduced, the Mobilizing Against Sanctuary Cities Act, with six Republican cosponsors.
Sanctuary cities have a new, cheaper way to help undocumented https://t.co/xgYH2TiLQh— Washington DC News (@washdcnews) January 5, 2017
According to Barletta, too many city mayors think that they are above federal law and place their own ideology ahead of the safety of their residents. His bill will stop that practice by cutting off their federal funding if they continue to refuse to cooperate with federal immigration enforcement.
It would have been better if he had thought of a way to accomplish his objective without hurting the citizens and Lawful Permanent Resident immigrants who depend on those funds.
Montgomery County, Md., Police Chief Tom Manger has a different view of the impact that police involvement in immigration enforcement has on community safety. He testified at a Senate hearing on behalf of the Major Cities Chiefs of Police that it is difficult to get cooperation from victims and witness who are undocumented immigrants when they see the police as immigration agents.
Sanctuary city mayors intend to resist the Trump administration’s sanctuary city policies. New York Mayor Bill de Blasio has said that New York will continue to defend undocumented immigrants.
The New York State Attorney General has issued a guide for local authorities on the extent to which federal law requires them to assist the federal government with immigration enforcement.
Chicago Mayor Rahm Emanuel has said that undocumented immigrants are safe in Chicago, that Chicago always will be a sanctuary city.
The key provision in Barletta’s bill provides that any “State or local government that violates … (IIRIRA)” may not receive “any Federal financial assistance.”
Our immigration court crisis will be Trump's lasting headache - The Hill (blog) https://t.co/yCgKVtK7hv— Immigration (@Immigration365) January 13, 2017
The Attorney General “shall determine annually which State or local jurisdictions are not in compliance.” And State or local jurisdictions that are not complying with that section:
“Shall be ineligible to receive Federal financial assistance for a minimum period of one year, and shall only become eligible again after the Attorney General certifies that the jurisdiction is in compliance."
Federal financial assistance refers to assistance that non-federal entities, like cities, “receive or administer in the form of grants, loans, loan guarantees, property, cooperative agreements, interest subsidies, insurance, food commodities, direct appropriations, or other assistance.”
Conditioning federal funds in this manner has been found to be permissible when the conditions “bear some relationship to the purpose of the federal spending,” but Barletta’s bill does not require a showing that a substantial number of undocumented immigrants are receiving the federal financial assistance that it would cut off.
Sanctuary cities are subject to federal laws that prohibits withholding immigration related information from federal immigration officials, but the meat cleaver solution that Barletta is proposing to enforce those laws is not the answer.
Moreover, sanctuary cities have alternatives to defying federal law.
Mayor Emanuel has established a Legal Protection Fund to provide legal assistance to undocumented immigrants in removal proceedings. This may be a better way to help them, and it avoids the threat of losing federal funds.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
The views of contributors are their own and are the views of The Hill.