Fight Over Sanctuary Cities Likely Headed to the Supreme Court
Justice Department puts 29 more jurisdictions on notice that they must comply or lose grant money for police
by Brendan Kirby | Updated 20 Nov 2017 at 6:58 AM
Two things happened last week reaffirming that President Donald Trump’s attempted crackdown on so-called sanctuary jurisdictions will be neither quick nor easy.
A federal judge in Philadelphia ruled that the administration overstepped its authority in threatening to withhold grant funding to the city, and on the same day, the Justice Department made the same threat against 29 jurisdictions — most of which responded with outright defiance.
"You're going to see lawsuits brought in multiple jurisdictions," predicted Chris Chmielenski, director of content and activism at NumbersUSA. "Ultimately, it's going to come to the Supreme Court."
Until then, however, resistance seems to be the dominant response of cities, counties and even states that have adopted policies designed to frustrate Immigration and Customs Enforcement officers from deporting illegal immigrants.
Since taking office, Attorney General Jeff Sessions has taken steps to put jurisdictions on notice that they will not be eligible for law enforcement grants from the federal government unless they comply with a federal statute promoting information-sharing among federal and local officers. On Wednesday, the Justice Department put 29 more jurisdictions on notice.
"Jurisdictions that adopt so-called sanctuary policies also adopt the view that the protection of criminal aliens is more important than the protection of law-abiding citizens and of the rule of law," Sessions said in a statement. "I urge all jurisdictions found to be potentially out of compliance in this preliminary review to reconsider their policies that undermine the safety of their residents."
Officials in the targeted jurisdictions blasted the Justice Department.
"This letter is the latest salvo in the barrage of Trump administration threats to sanctuary cities," San Francisco city attorney Dennis Herrera said in a statement. "The law is on our side, and we intend to beat back this threat, just like all the others before it."
Joe McDermott, chairman of the King County Council in Washington, told KRIO 7 that the county would not back down.
"We're prepared to make a vigorous defense," he said. "They're trying … to bully and intimidate people in King County, and I won't stand for it."
Jackson, Mississippi, Mayor Chokwe Antar Lumumba said the city's policy is intended to prevent racial profiling.
"The city of Jackson is firmly committed to promoting and securing safe communities … Racial profiling is patently illegal, violating the U.S. Constitution's principal assurance of equal protection under the law to all and freedom from unreasonable searches and seizures," he said in a statement.
The Justice Department letter raises concerns about jurisdictions that received grants under the Edward Byrne Memorial Justice Assistance Grant program in fiscal year 2016 and demands a response by December 8 as to whether they intend to comply with federal law for fiscal year 2017 grants.
At issue is a law passed by Congress in 1996 declaring that a government "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from … information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
The Justice Department has interpreted that statute broadly, to include policies such as honoring ICE requests to hold illegal immigrants arrested on other charges. Jurisdictions with sanctuary policies argue for a narrower interpretation that address only policies that specifically prohibit state or local government employees from talking to ICE.
So far, federal judges have sided with the sanctuary jurisdictions. U.S. District Judge Michael Baylson last week became the latest to rule against the Justice Department.
"Philadelphia is not a sanctuary for anyone involved in criminal conduct, nor is it a sanctuary as to any law enforcement investigation, prosecution, or imprisonment after having been found guilty of a crime," he wrote in his 128-page order.
Baylson's ruling follows a decision in September by U.S. District Judge Harry Leinenweber that Sessions exceeded his authority in demanding the city of Chicago honor hold requests and give ICE agents unrestricted access to police stations and other facilities in order to interrogate suspected illegal immigrants. The judge also issued a nationwide prohibition against the Justice Department from enforcing those provisions.
But the judge ruled that the Justice Department could enforce the information-sharing rules, and last week, he denied a request by the city to reconsider that part of his ruling.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, agreed that the Supreme Court likely will have to settle the dispute.
"I don't think that the DOJ is simply going to accept these [lower court] rulings," she said.
The cities, counties and states that are in the Justice Department's crosshairs argue that they do not prohibit their employees from communicating with ICE.
"But, in fact, a lot of these sanctuary policies do just that," said Vaughan, who tracks immigration policies of local jurisdictions across the country.
Local officials with sanctuary policies often argue that they are willing to cooperate with ICE but cannot legally hold suspected illegal immigrants beyond their release dates without judicial warrants. Vaughan said the Department of Homeland Security has resisted that because of the sheer volume of illegal immigrants arrested on local charges at any given time.
But she said it may be time adopt that policy.
"It's a lot safer for an ICE agent to go to a judge's house in the middle of the night than to go to a criminal alien's house," she said.
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