January 27, 2017
On Wednesday, January 25th, President Donald Trump signed an executive order that seeks, in part, to deny federal funding to "sanctuary jurisdictions" that "willfully refuse to comply with 8 U.S.C. § 1373." Section 1373 prohibits state and local governmental entities from restricting communication with federal immigration enforcement authorities regarding the citizenship or immigration status of individuals. The executive order further provides that "appropriate enforcement action" will be taken by the U.S. Attorney General against any entity that violates Section 1373 or has a "statute, policy, or practice that prevents or hinders the enforcement of federal law."
No single, accepted definition exists for the term "sanctuary." It describes a wide variety of efforts by governmental entities to create and support safe environments for undocumented community members. The executive order, moreover, does not define "sanctuary." At minimum, the executive order signals that a governmental entity would be deemed a "sanctuary jurisdiction" by the Trump administration if it fails to comply with Section 1373 or has a "statute, policy, or practice that prevents or hinders the enforcement of federal law," which is certainly a broad definition that could be subject to multiple interpretations. Under the executive order, the U.S. Secretary of the Department of Homeland Security ("DHS") has the discretion "to the extent permitted by law" to designate a governmental entity as a "sanctuary jurisdiction." It is unclear what precise criteria will be used to make this designation.
President Trump has repeatedly described "sanctuary jurisdictions" as including governmental entities that refuse to honor federal retainer requests or immigration holds made of local law enforcement by federal immigration enforcement authorities, such as agents of the U.S. Immigration and Customs Enforcement ("ICE"), before an undocumented immigrant is released from custody. Interestingly, Section 1373, which is cited in the executive order, does not address local governmental entities’ compliance with federal detainer requests or immigrations holds.
Nevertheless, former California Attorney General Kamala Harris has repeatedly maintained that such federal detainer requests are not mandatory and that compliance by local governmental entities could lead to a violation of the 4th Amendment of the United States Constitution under certain circumstances. See Information Bulletin of Kamala Harris, Responsibilities of Local Law Enforcement Agencies Under Secure Communities and the TRUST Act, (Dec. 25, 2014); Information Bulletin of Kamala Harris, Responsibilities of Local Law Enforcement Agencies Under Secure Communities, (Dec. 4, 2012). The Third Circuit Court of Appeals similarly stated that "immigration detainers do not and cannot compel a state or a local law enforcement agency to detain suspected aliens subject to removal." Galarza v. Szalczyk, 745 F.3d 634 at 636 (3rd Cir. 2014).
Finally, the executive order directs the Office of Management and Budget to make an accounting of federal grant monies received by governmental entities deemed to be "sanctuary jurisdictions." The denial of federal funding to "sanctuary jurisdictions" raises serious questions under the 10th Amendment of the United States Constitution and related jurisprudence addressing states’ rights. See National Federation of Independent Businesses, 132 S.Ct. 2566, 2602 (2012) ("Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system."); Printz v. United States, 521 U.S. 898, 935 (1997)("The Federal Government may neither issue directives requiring States to address particular problems, nor command States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program"); New York v. U.S., et al., 505 U.S. 144 (1992)("Congress may not simply commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program").
Many questions remain regarding the manner in which the Trump administration will implement the executive order regarding "sanctuary jurisdictions." Uncertainties regarding President Trump’s threat to cut federal funding to "sanctuary" cities reportedly factored into the recent decision of San Francisco municipal employees unions to extend their existing contracts by two years rather than commence bargaining this month. "SF and Its Unions Agree to Extend Contract 2 Years," San Francisco Chronicle (Jan. 19, 2017).
AALRR partner Gabriel Sandoval is available to provide advice and counsel regarding the effect of the executive order on municipalities and other public entities.