[UPDATE — GOOD NEWS! The judge in San Francisco v. Trump just issued a temporary preliminary injunction blocking the DOJ action described in this article – at least for now. – details at end of this post.]
From the campaign onward, Trump’s anti-immigrant rhetoric also targeted sanctuary cities. Since his inauguration, his administration has made three moves against sanctuary cities: an executive order, a failed series of ICE reports, and now Attorney General Jeff Sessions’ attack on nine sanctuary cities. With battle lines drawn, sanctuary cities are fighting back.
Jeff Sessions on the attack
On April 21, the Department of Justice sent letters to nine jurisdictions “having laws that potentially violate 8 U.S.C. §1373:” — Sacramento, Chicago, New Orleans, New York City, Philadelphia, Las Vegas, Miami, Milwaukee, New York, and Chicago. A press release accompanying the letters charged that “many of these jurisdictions are also crumbling under the weight of illegal immigration and violent crime.”
The press release charged that, “New York City continues to see gang murder after gang murder, the predictable consequence of the city’s ‘soft on crime’ stance.” That’s a flat-out lie, according to New York’s mayor and police chief:
“[NYC Mayor Bill] De Blasio said such remarks were “absolutely outrageous”. James O’Neill, head of New York’s police department, similarly rejected the justice department’s claims, saying they showed “a willful disregard for the facts”.
“O’Neill noted that 2016 saw the fewest shootings in New York City history since it began keeping records, and that since 1993, “murder has decreased 82%, shootings have decreased 81%, and overall crime has decreased 76%. These are the facts.”
Sessions is following his boss’s example, making unfounded allegations of immigrant crime. As I wrote previously, claims that undocumented immigrants put sanctuary cities at risk from crimes are contradicted by studies showing immigrants are less likely to commit crimes than native-born Americans. Moreover, the cities identified by the Trump administration as “sanctuary cities” have lower crime rates overall. (That’s correlation, not causation: no proof that being a sanctuary city causes lower crime rates.)
Put aside for the moment the factually inaccurate Trump/Sessions attacks on immigrants and sanctuary cities. The focus of the letters is a U.S. law. Do sanctuary cities actually violate that law?
The initial difficulty comes in defining a sanctuary city. Each city has its own ordinance. The ordinances are not identical. “Sanctuary city” has no legal definition. That’s why the Sessions letter orders each city to “submit documentation … that validates that your jurisdiction is in compliance with 8 U.S.C. § 1373.” He’s not offering any proof that cities are violating the law, but asking them to prove that they are not.
Section 1373 says that local authorities may not order public officials to withhold information from immigration authorities about people’s immigration status. The DOJ is targeting separation ordinances, which, while varying from city to city, generally order local officials not to inquire about immigration status unless required by law (e.g. eligibility for food stamps) or unless someone is convicted of a crime.
For example, a separation ordinance would mean that a public library could not inquire about immigration status of cardholders. If the library has no information on immigration status, then it cannot furnish the information to federal authorities and it cannot withhold the information. It simply does not have the information. Thus, if local officials never gather the information, then the question of violating Section 1372 by withholding information would not arise.
Earlier Trump administration attacks fail
This latest attack follows ICE’s fumbled attempt to target “non-cooperating jurisdictions” as sanctuary jurisdictions. Both flow from a January 25 executive order that says, ” Sanctuary jurisdictions across the United States willfully violate Federal law …”
That order specifically directed “the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”
Detainers are ICE requests to local jails to hold immigrant detainees past their judicially ordered release dates so that ICE can decide what it wants to do with them. Several federal court decisions say that this is unconstitutional, because it means imprisoning someone without a warrant or court order. Nonetheless, ICE followed the president’s order and started publishing “non-cooperating jurisdiction” reports.
That didn’t work out so well. The reports failed to gain traction because they “contained misleading information that prompted confusion and defiance among law enforcement officials from the jurisdictions named.” After a few weeks, the reporting was discontinued.
Sanctuary cities fight back
Some cities are suing to invalidate the executive order and any penalties against sanctuary cities. San Francisco’s lawsuit had a day in court in mid-April. That led to the spectacle of the government attorney saying that Trump and Sessions didn’t really mean it when they threatened sanctuary cities:
“There’s been no action threatened or taken against the cities,” Assistant Attorney General Chad Readler said at a hearing in San Francisco on a lawsuit by San Francisco and Santa Clara County. He said Trump, in a Jan. 25 order that spoke of withholding federal funds from cities and counties that refused to cooperate with federal immigration agents, was just using a “bully pulpit” to advocate compliance.”
Seattle has also sued the federal government over sanctuary status. Seattle Mayor Ed Murray:
“Attorney General Jeff Sessions told cities that they’re breaking the law and making their communities less safe,” said the mayor at a press conference.
“We are not breaking any laws, and we are prioritizing safety,” said Murray. “And let me be clear about the president’s executive order: It is violating the law. It is unconstitutional.”
The Immigration Prof Blog points out that, even if the DOJ decides to cut funding, the impact is limited:
“The dollar amounts for the grants in question are relatively small compared with the overall budgets of governments that received the letters. For example, according to the Justice Department, the City of New York received a $4.3 million grant in 2016. Other places sent a letter included the State of California, which received $10.4 million, divvied up among 128 cities and counties; Chicago and its county, Cook, shared a $2.3 million grant; New Orleans, $265,832; Las Vegas’s Clark County, $11,537; Miami-Dade County, $481,347; Milwaukee County, $937,932; and Philadelphia, $1.7 million. Each letter was signed by Alan R. Hanson, the acting director of the Office of Justice Programs, which administers the Byrne law enforcement grant program.”
The Trump/Sessions attacks on sanctuary cities may actually generate more support for sanctuary.
“A poll conducted by U.C. Berkeley researchers in 2015 found that attitudes on sanctuary policies transcended political affiliation: 82 percent of Republicans and 73 percent of Democrats were opposed to them.
“But when Californians were asked again last month, while Republican attitudes were largely unchanged, the Democrats showed a remarkable shift — now, more than 70 percent supported sanctuary policies.”
As attacks keep coming, more people seem ready to stand up and fight back, to defend both immigrants and their local government’s right to local decision-making.
In a 49-page decision on April 25, U.S. District Judge William Orrick III issued a preliminary injunction against enforcement of President Donald Trump’s executive order penalizing sanctuary jurisdictions – section 9(a) of the executive order. The preliminary injunction applies not only in San Francisco, but nationwide. The injunction “does not impact the Government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction as a ‘sanctuary jurisdiction.’”
Judge Orrick said it was clear that the executive order meant to withhold federal funds for more than law enforcement:
“The rest of the Order is broader still, addressing all federal funding. And if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments. The President has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the President intends to ensure that ‘counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.’”
White House chief of staff Reince Priebus called the ruling “the 9th Circuit going bananas” and said the administration will appeal.
For more information:
- U.S. judge blocks Trump order to restrict funding for ‘sanctuary cities’ (Reuters, 4/25/17)
- Judge Blocks Trump Effort to Withhold Money From Sanctuary Cities (New York Times, 4/25/17)
- Federal Court In San Francisco Blocks Trump’s Threat Against Sanctuary Cities (NPR, 4/25/17)
A Federal Judge Just Blocked Trump’s Executive Order Targeting Sanctuary Cities (Mother Jones, 4/25/17)
- U.S. Department of Justice threatens so-called sanctuary jurisdictions (Immigration Prof Blog, 4/22/17)
- Sanctuary Cities Face Aid Cuts as Justice Dept. Tightens Screws (New York Times, 4/22/17)
- Justice Department warns sanctuary cities in California, 8 other jurisdictions to cooperate with immigration enforcement, Los Angeles Times, 4/21/17)
- Department of Justice Sends Letter to Nine Jurisdictions Requiring Proof of Compliance with 8 U.S.C. 1373 (DOJ Press Release, 4/21/17)
- Text of DOJ letters to cities (4/21/17)
- Jeff Sessions exaggerates claim about ‘sanctuary’ policies and violating federal law (Politifact, 3/30/17)
- Immigration Detainers Legal Update (Immigration Legal Resource Center, October 2016)
- San Francisco seeks to block Trump’s order on sanctuary cities (NPR, 4/14/17)
- Faced with San Francisco lawsuit, Trump lawyer backs down on sanctuary cities (Immigration Law Prof blog, 4/14/17)
- Judge weighs arguments in SF, Santa Clara sanctuary cities case (San Francisco Chronicle, 4/14/17)
- Federal judge in California deals blow to Trump policy on sanctuary cities (Chicago Tribune, 4/14/17)
- Seattle sues Trump administration over sanctuary city orders (Curbed Seattle, 3/29/17)
- California Today: A Big Swing on Sanctuary Cities (New York Times, 4/24/17)
- The Trump Era Tests the True Power of Sanctuary Cities (The New Yorker, 4/18/17)