Justice Department releases guidance defining ‘sanctuary city’

By Andrea Noble - The Washington Times - Monday, May 22, 2017

Amid confusion over what actions put local law enforcement agencies at risk of losing federal funds under President Trump’s executive order targeting so-called sanctuary cities, the Justice Department has sought to clarify.

Attorney General Jeff Sessions on Monday issued a memo defines sanctuary cities as those that refuse to share certain immigration status-related information with federal officials. It also narrows the scope of the federal funds that a jurisdiction would risk by not cooperating with immigration officials, limiting the grants to those overseen by the Justice Department or the Department of Homeland Security rather than all sources of federal funding.

Jurisdictions will be considered ineligible for certain grants if they “willfully refuse to comply” with U.S.C. 1373, which bans local governments from enacting policies that restrict or prohibit communications with the Department of Homeland Security “regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

The memo, which was sent the DOJ’s grant making components, says that state and local jurisdictions will be asked to certify their compliance with the law.

“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,” the memo states.

The Trump administration has yet to move forward with enforcement of portions of the order that would cut off federal funding for sanctuary cities, but San Francisco and Santa Clara, California recently filed suit over it. The cities argued that the prospect of losing unspecified grants has thrown their budgeting process into disarray.

After Mr. Trump initially issued his sanctuary city policy in a Jan. 25 executive order, analysts speculated everything from Medicaid money to school funds could have been on the chopping block. But the Justice Department acknowledged during the course of the suit that just three grants could be revoked under the executive order - the Byrne Justice Assistance Grants, the COPS program and the State Criminal Alien Assistance Program, which pays local prisons and jails to hold illegal immigrants.

A federal judge ruled last month in the case that the Trump administration can withhold grant funds in cases where compliance with Section 1373 is already a stipulation of the grant.

Mr. Sessions’ memo indicates that the Justice Department may look to require jurisdictions to comply with section 1373 as a condition of receiving future grants.

“Separate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department’s law enforcement priorities,” the memo states. “Consistent with this authority, over the years, the Department has tailored grants to focus on, among other things, homeland security, violent crime (including drug and gang activity), and domestic violence. Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration.”

San Francisco city attorney Dennis Herrera said the DOJ’s memo doesn’t mitigate the legal concerns raised by the order.

“The memo is a self-serving document. We can’t rely on it, and we can’t trust it,” Mr. Herrera said. “It is trying to blunt the resounding loss the Trump administration suffered on our motion for a preliminary injunction, but the memo doesn’t change the constitutional problems of the executive order.”

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