HomeMy WebLinkAboutNews Release - Mail Packet - 6/6/2017 - Article From Darin Atteberry From Citiesspeak Dated May 25, 2017, The Attorney General Defined Sanctuary Cities. Here Is What You Need To KnowThe Attorney General
Defined Sanctuary Cities. Here’s
What You Need to Know.
By Lisa Soronen in Citiesspeak, city administration, Federal
Government, immigration, law enforcement, sanctuary jurisdictions
May 25, 2017
On Monday, Attorney General Jeff Sessions issued the government’s first
official definition of “sanctuary cities” and made it clear that President
Trump’s power to cut off funding from local governments on the basis of
immigration policy is limited to cities that “willfully refuse to comply” with a
specific section of federal law.
For the most part, and for now, Attorney General Jeff
Session’s memo defining ”sanctuary jurisdictions” per President Donald
Trump’s sanctuary jurisdictions executive order (EO) returns the law to what
it was before the order was issued.
Because of specific language in the EO, so-called sanctuary jurisdictions were
afraid the federal government was going to take away all federal grant funding
if, among other things, the sanctuary cities did not comply with warrantless,
voluntary Immigration and Customs Enforcement (ICE) detainers, which
instruct jails to detain undocumented persons after they may be otherwise free
to go so that ICE may pick them up and deport them.
Many cities and counties — even those that don’t label themselves sanctuary
jurisdictions — don’t respond to warrantless ICE detainers because numerous
courts have held that doing so violates the Fourth Amendment.
In the memo, General Sessions determines that the term “sanctuary
jurisdiction” only refers to jurisdictions that “willfully refuse to comply with 8
U.S.C. 1373.”
June 1, 2017
TO: Mayor & City Council
FROM: Darin Atteberry
RE: Per May 30 LPT Minutes
Section 1373 is very narrow; it only prohibits local governments from
restricting employee communication of immigration status information to
ICE. Many local governments comply with Section 1373 by simply instructing
their employees not to ask people about their immigration status so they have
no such information to pass along to ICE.
In a motion asking the district court that granted a preliminary injunction
blocking the EO to reconsider its decision, the Department of Justice (DOJ)
explicitly confirmed it is not interpreting Section 1373 to require compliance
with ICE detainer requests.
The Sessions memo says that the executive order only applies to DOJ or
Department of Homeland Security grants.
Jurisdictions applying for certain DOJ grants must certify their compliance
with Section 1373. This certification requirement “will apply to any existing
grant administered by the Office of Justice Programs and the Office of
Community Oriented Policing Services that expressly contains this
certification condition, and to future grants for which the department is
statutorily authorized to impose such a condition.”
Before the executive order was issued, DOJ conditioned the receipt of Edward
Byrne Memorial Justice Assistance (JAG) grants ($84 million in FY16, directly
to local governments) and Community-Oriented Policing Services (COPS)
grants ($187 million in FY16) on complying with Section 1373. COPS and JAG
grants provide funding to employ local law enforcement.
Conditioning JAG and COPS dollars on complying with Section 1373 may be
legally problematic. Supreme Court precedent allows Congress (not federal
agencies or the president) to place conditions on federal grants — but only if
Congress does so unambiguously.
While the JAG statute requires compliance with “all other applicable federal
laws,” this phrase is not defined to include (or exclude) Section 1373. The
COPS statute contains no such language.
The Sessions memo doesn’t entirely back off of the EO. It highlights that, per
the EO, DOJ may still “point out ways that state and local jurisdictions are
undermining our lawful system of immigration, or to take enforcement action
where state or local practices violate federal laws, regulations or grant
conditions.”
The president’s proposed budget indicates he has not given up on making local
governments comply with ICE detainers or on conditioning the receipt of
other federal grants on complying with ICE detainers. Specifically, the
proposed budget would expand Section 1373 to prohibit local governments
from restricting local law enforcement compliance with ICE detainers (even if
passed, this provision could have Fourth Amendment and Tenth Amendment
problems.) It would also expand Section 1373 to allow the Secretary of
Homeland Security or the Attorney General to condition immigration,
national security and law enforcement grant funding on compliance with ICE
detainers.
Featured image: San Francisco is one of a number of cities that sued the
Trump administration in response to the sanctuary cities executive order,
arguing that enforcing federal immigration laws does not relate to federal
funding they receive for infrastructure, health care, education or other
fundamental systems. (Getty Images)
About the author: Lisa Soronen is the executive director of
the State and Local Legal Center (SLLC), which files Supreme Court amicus
curiae briefs on behalf of the Big Seven national organizations, including the
National League of Cities, representing state and local governments. She is a
regular contributor to CitiesSpeak.