For one thing, “sanctuary city” is not a legal term, or even a precise term. Some people use “sanctuary city” to refer to municipalities that allow illegal immigrants unfettered access to government services. Others refer to the practice of not reporting individuals arrested for certain crimes to Immigration and Customs Enforcement (ICE). (Navarrette: “Some ordinances might bar local officers from cooperating with immigration agents at traffic stops. Others might bar federal authorities from ascertaining the immigration status of those booked. Others might prohibit the release to federal officials of any suspect who could be an illegal immigrant.”) But to be clear, no state has the power to prevent an ICE agent from making an arrest, conducting an investigation or stopping a suspected illegal immigrant. This is all about the degree to which ICE can dragoon local officials into doing the feds’ work for them.
Trump suggests millions of dangerous illegal immigrants are being harbored by localities. He wants to cut off funding to these states, a draconian solution to an invented calamity.
Let’s take a step back here. Conservatives should know that under the Constitution, federal authorities cannot force state officials to do the feds’ work. That has been at the heart of challenges to the Medicaid provisions in Obamacare and other federal statutes that place conditions on money (e.g., expand Medicaid, raise the drunk driving age) going to the states.
In the context of Obamacare, Chief Justice John G. Roberts Jr. made clear that “our cases have recognized limits on Congress’s power under the Spending Clause to secure state compliance with federal objectives. . . . Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system.” The court therefore will strike down legislation that in essence “commandeers a State’s legislative or administrative apparatus for federal purposes.” He continued, “Congress may use its spending power to create incentives for States to act in accordance with federal policies. But when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism.” Surely, threatening to take away all federal support for a city that doesn’t send cops out on the streets looking for suspected illegal immigrants to round up for ICE would be unconstitutional.
So, to be clear, anti-immigrant advocates mislead by saying cities are giving “sanctuary” to illegal immigrants; they are complaining about the degree to which local law enforcement can be pressed into doing ICE’s work, including the use of local jails to house illegal immigrants until they can be processed through the system. There is an irony here that Republicans who insist on federalism when it comes to a whole array of issues (e.g., environment, schools) now want the states to be agents of the federal government when it comes to illegal immigrants.
Moreover, this is supposed to be about dangerous criminal supposedly unleashed on Americans. In fact, the number of illegal immigrants who have committed serious crimes and then been released into the community has been grossly exaggerated, as numerous fact checkers have pointed out. The Post has reported that under the Priority Enforcement Program, the country is currently doing pretty much what President-elect Donald Trump wants, namely focusing on dangerous criminals. In conjunction with local authorities, ICE is trying to emphasize public safety. (“Jennifer Elzea, an ICE spokeswoman, said the agency determines detention requests for immigrants ‘on a case-by case basis with a priority for detention of serious criminal offenders and other individuals who pose a significant threat to public safety.’ She added that ICE ‘is focused on smart, effective immigration enforcement that prioritizes the removal of criminal aliens, recent border crossers and egregious immigration law violators, such as those who have been previously removed from the United States.’”) In fact, immigrant groups are complaining that the administration is casting too wide a net, rounding up nonviolent drug offenders.
Trump has asserted there are 2 million to 3 million “criminal aliens” subject to removable. The Post and many other fact checkers have debunked this assertion. (“The number that directly fits the ICE definition of ‘criminal aliens’ released into the community is 82,228 – about 27 percent of Trump’s figure [of 300,000 criminal aliens released by ICE since 2013, who were not detained or processed for deportation ] — that the agency reported to Congress. Of that figure, 56 percent were released based on ICE’s discretion, or ‘being politically correct,’ as Trump would say.”)
In sum, the notion that the feds would force localities to become ICE agents and then hold for processing for indeterminate amounts of time every illegal immigrant they find is preposterous and unnecessary — as well as constitutionally suspect. He’s taken a problem of about 80,000, inflated it into an epidemic and highlighted a tiny number of isolated cases in an effort to frighten Americans and force states to become giant holding pens for nonviolent illegal immigrants. (There are plenty of constitutional issues about the excessive time people are being held while the immigration court backlog gets whittled down.)
Let’s see what Trump actually comes up with, but simply tossing around the term “sanctuary cities,” making up big numbers and threatening to end all federal funding for major cities should not obscure the constitutional and real problems associated with his scheme. Maybe like so much of what Trump said during the campaign, the issue will just fade away.
UPDATE: A colleague points out that Trump’s promise to “cancel” funding for sanctuary cities in his first hundred days in office is even more ridiculous. Congress has the power of the purse.