Press Release (ePRNews.com) - WASHINGTON - May 08, 2017 - Texas Governor Greg Abbott has just signed a bill banning sanctuary cities, making it the latest jurisdiction to go along with President Trump’s apparently unconstitutional executive order, argues public interest law professor John Banzhaf.
The new law permits law enforcement officials to interrogate motorists during routine traffic stops about their immigration status, and authorizes jail for sheriffs who refuse to cooperate with federal immigration officials.
Just a few days earlier, Florida’s House overwhelmingly voted to outlaw sanctuary cities, and to impose harsh penalties on any elected officials or communities that seek to thwart that ban. The Maryland House had earlier rejected a strongly promoted proposal to turn Maryland into a “sanctuary state.”
Also, in the wake of the original announcement by U.S. Attorney General Jeff Sessions that he would cut off funding if so-called sanctuary cities did not begin cooperating with the federal government regarding illegal aliens, it has been reported that the New York City Police Department [NYPD] now alerts Immigration and Customs Enforcement [ICE] agents if immigrants facing deportation are due to appear in Criminal Court, thereby making it easier for them to be detained by the federal government.
In another example, Florida’s Miami-Dade, long known for welcoming immigrants, has ordered jails there to “fully cooperate” with Trump’s order, and others appear to be considering it.
Already other states are moving to pass legislation requiring or at least pressuring cities and other localities to begin cooperating with federal immigration enforcement. These include Iowa, Kansas, Kentucky, North Carolina, Pennsylvania, Virginia, Wisconsin.
Although federal judge William Orrick III of California has issued an order blocking enforcement of a major part of a threat by the Trump administration to cut off funding to sanctuary cities, and the government has admitted in court that it is “toothless,” “did not change existing law,” “carries no legal force,” and was “merely an exercise of the President’s bully pulpit,” cities should nevertheless fear the order, and many more may change their policies as a result, says Banzhaf, who correctly predicted the judge’s action.
While the executive order may have no legal effect even if the injunction is lifted, it still sends a clear message to dozens of federal agencies, and thousands of bureaucrats, that the President is strongly opposed to grants being awarded (or even renewed) to hundreds of so-called sanctuary cities.
As a result, many political appointees and others who favor the President’s views are likely to avoid awarding any such grants, and even other federal workers opposed to the President’s policy may well shy away from making such awards out of fear of alienating their superiors, predicted Banzhaf.
Although Maryland’s Attorney General has just issued a legal analysis, similar to that published earlier by Prof. Banzhaf, showing that the Executive Order doesn’t really require states to honor detainers or otherwise help ICE, this probably-unconstitutional order will continue pressure cities, understandably unwilling to risk their funds – or even a law suit – to assist ICE, predicts Banzhaf.
Similarly, the Justice Department’s latest attempt to pressure so-called sanctuary cities to cooperate in immigration enforcement efforts – a threatening letter sent to nine jurisdictions – seems to be a largely empty or at least an exaggerated threat and probably illegal, but it is likely to be effective anyway, says Banzhaf.
Notwithstanding suggestions to the contrary, no federal law requires – nor can it constitutionally require – cities to assist the federal government in enforcing immigration law.
More specifically, federal law does not require cities to honor so-called detainer requests from federal immigration authorities, he notes.
Despite many complaints from the administration that sanctuary cities are not honoring detainer requests by ICE, its own report now concedes that such cooperation is not required, and that failure to honor detainer requests cannot provide grounds for withholding federal funds. Thus it has stated:
“Section 1373 does not specifically address restrictions by state or local entities on cooperation with ICE regarding detainers. A legal determination has been made . . . that civil immigration detainers are voluntary requests. The ICE officials with whom we spoke stated that since the detainers are considered to be voluntary, they are not enforceable against jurisdictions which do not comply” [emphasis added].
Indeed, notes Banzhaf, the only requirement applicable federal law imposes, under 8 U.S.C. 1373, is that state and local officials not prohibit or restrict employees from providing “information regarding citizenship or immigration status.”
But since sanctuary cities usually simply have police never question people about their status, officials would have no citizenship and/or immigrant status information available to share which would be restricted, so there would be no violation, and the threat appears to be largely an empty one.
In any event, the entire program, beginning with President Trump’s executive order stating that funds should be cut off to so-called sanctuary cities – if it is interpreted as many may suggest – would constitute an unconstitutional violation of both states’ rights and Congress’ rights, but it is still likely to be quite effective in ending sanctuary status, suggests Banzhaf.
If, as some fear, the order would threaten funding for cities which claim sanctuary status because they tell police not to question people about their immigration status, and don’t honor detainer requests to hold people in jail for immigration purposes, it may be unconstitutional on several grounds.
Moreover, since the order provides for funds to be cut off only to “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373,” it’s not clear if it would even apply to most sanctuary cities since they do not prohibit, much less “willfully prohibit,” employees from providing immigration information.
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Public Interest Law Professor John Banzhaf