Federal appeals court says Donald Trump’s order against sanctuary cities is unconstitutional
President Donald Trump's executive order to withhold federal funds from so-called "sanctuary cities" violates the Constitution's separation of powers principle, said a federal appeals court as it sided with a lower court's determination.
Under the Constitution, spending power rests with Congress. Without congressional authorization, the Trump administration "may not redistribute or withhold properly appropriated funds" in order to carry out its own policy goals, said the opinion written by Ninth U.S. Circuit Court of Appeals Chief Judge Sidney R. Thomas. The case was decided 2-1 on Aug. 1.
"The administration has not even attempted to show that Congress authorized it to withdraw federal grant moneys from jurisdictions that do not agree with the current administration's immigration strategies. Nor could it," Thomas wrote. "In fact, Congress has frequently considered and thus far rejected legislation accomplishing the goals of the executive order."
The ruling is a setback for Trump's attempt to cut federal funding for municipalities that don't embrace his immigration approach. Trump contends that jurisdictions ultimately endanger the general public if they follow "sanctuary" policies that limit their assistance to federal immigration officers in the apprehension and deportation of immigrants in the country illegally.
His executive order sought to restrict federal funds from municipalities that the administration determined as noncompliant with a section of law related to cooperation with federal immigration officers.
San Francisco and Santa Clara, Calif., challenged Trump's order. The federal appeals court said it agreed on an injunction on the order's effect in California, but "the record as presently developed does not justify a nationwide injunction." The appeals court sent the case back to the district court for reconsideration and further findings.
Trump's executive order faces legal obstacles, but his promise to cut federal funding from sanctuary cities retains support from some lawmakers who have introduced a bill toward this goal. Despite the legal setback, we continue to rate this promise as In the Works.
House passes bill to withhold certain federal grants from 'sanctuary cities'
Lawmakers in the U.S. House of Representatives passed a bill that would advance one of President Donald Trump's campaign promises against so-called "sanctuary cities."
The bill said no federal, state or local government entity and no individual may prohibit or in any way restrict officials and personnel at all levels of government from complying with immigration laws, "or from assisting or cooperating with federal law enforcement entities, officials, or other personnel regarding the enforcement of these laws."
The bill refers to immigration laws as those defined in 8 U.S.C. 1101(a)(17), relating to the immigration, exclusion, deportation, expulsion or removal of aliens.
HR 3003, introduced by Rep. Bob Goodlatte, R-Va., seeks to prevent the prohibition or restriction of:
• inquiries related to an individual's immigration status;
• responses to requests for such information from federal law enforcement;
• and notifications to the federal government of the presence of individuals encountered by law enforcement.
States or political subdivisions of states that do not comply with provisions in the bill would not be eligible for certain Justice Department grants or for grants administered by the departments of Homeland Security and Justice that are "substantially related to law enforcement, terrorism, national security, immigration, or naturalization," according to the bill.
Funds would be redirected to other entities that do comply, the bill said.
The bill also aims to clarify the authority regarding detainer requests from U.S. Customs and Immigration Enforcement.
ICE sends forms to local law enforcement agencies letting them know they intend to take into custody individuals for whom there's probable cause that they are deportable before they are released. The detainer asks local agencies to maintain individuals in custody for up to 48 hours.
Some jurisdictions limit their cooperation with ICE detainers, claiming it can harm the trust and relationship between local law enforcement and immigrant communities. They also contend immigration enforcement is a federal not local duty.
If an individual is arrested for allegedly violating any criminal or motor vehicle law, detainers for them may be issued if there's probable cause the individual can be deported, Goodlatte's bill said.
President Donald Trump expressed support for the bill June 28 during an immigration roundtable.
In April, A California judge granted a nationwide preliminary injunction that temporarily blocked a section of an executive order signed by Trump to withhold federal funds from "sanctuary cities."
The bill passed by the House, however, is another approach toward the president's promise. It still has to go through the Senate and be signed by the president.
We move this promise from Stalled to In the Works.
Congress.gov, H.R.3003 - No Sanctuary for Criminals Act, introduced June 22, 2017
White House, H.R. 3003 – No Sanctuary for Criminals Act, June 27, 2017
White House, Remarks by President Trump During Meeting with Immigration Crime Victims, June 28, 2017
U.S. Customs and Immigration Enforcement, Detainer Policy, accessed June 29, 2017
Cornell Law School, Legal Information Institute, 8 U.S. Code § 1101 - Definitions
California judge halts Trump’s executive order
A California judge has temporarily blocked a section of an executive order signed by President Donald Trump aiming to withhold federal funds from so-called "sanctuary cities."
U.S. District Judge William H. Orrick on April 25 granted a nationwide preliminary injunction sought by the local governments of San Francisco and Santa Clara County.
The counties claimed Trump's order was unconstitutional on several grounds, including a violation of the separation of powers doctrine by seeking to use congressional spending powers. They said Trump's order was "so overbroad and coercive" that even if Trump had spending powers, his order would exceed them and violate the 10th Amendment's commandeering prohibition.
San Francisco and Santa Clara County also claimed the order was in violation of the Fifth Amendment procedural due process requirements, because the executive order sought to eliminate congressionally allocated funds without giving jurisdictions notice or an opportunity to be heard.
Orrick said their arguments were likely to succeed on the merits of their challenge and that they "will suffer irreparable harm absent an injunction, and that the balance of harms and public interest weigh in their favor."
The judge's ruling said the court was not impeding Trump's administration from defining what is a sanctuary jurisdiction or labeling localities as such, nor was it stopping the government from using lawful means to enforce existing conditions for jurisdictions to receive federal grants.
The ruling also did not hinder the government's ability to enforce 8 U.S. Code Section 1373. That code says federal, state or local government entities or officials may not prohibit or restrict the exchange of information with federal immigration officers regarding the citizenship or immigration status of any individual.
The White House called the ruling an "egregious overreach by a single, unelected district judge" and expressed confidence in winning the battle in the Supreme Court.
"In the meantime, we will pursue all legal remedies to the sanctuary city threat that imperils our citizens, and continue our efforts to ramp up enforcement to remove the criminal and gang element from our country," the White House said in a statement.
"First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!"
As a result of the court's order blocking the Trump administration's intent to withhold federal funds from "sanctuary cities," we rate this promise Stalled.
U.S. District Court, Northern District of California, Sanctuary Jurisdiction Cases
Atlanta Journal-Constitution, Federal judge blocks Trump executive order holding back funds to sanctuary cities, April 25, 2017
ICE temporarily stops publishing weekly report of declined detainers
President Donald Trump's efforts to pressure so-called sanctuary cities to abide by federal immigration officials' requests have met a roadblock.
Immigration officials have temporarily suspended the publication of a weekly report that listed jurisdictions not complying with detainer requests.
U.S. Immigration and Customs Enforcement issues detainer requests to local law enforcement agencies to let them know federal officials intend to take custody of individuals before local authorities release them. The requests ask agencies to hold individuals for up to 48 hours.
ICE's Declined Detainer Outcome Report also listed the crimes individuals who were released by local authorities had been charged for or committed.
Multiple jurisdictions that appeared on ICE's reports challenged the accuracy of the information.
The immigration agency posted corrections on its website saying that due to a data processing error, a past report had attributed issued detainers to the wrong jurisdictions, including Franklin County, Iowa. Other jurisdictions were also incorrectly identified as having declined detainers.
"ICE remains committed to publishing the most accurate information available regarding declined detainers across the country and continues to analyze and refine its reporting methodologies," Sarah Rodriguez, ICE spokeswoman said in a statement.
Publication will temporarily cease as ICE analyzes its reporting methods, Rodriguez said.
The declined detainer report "has already sparked important conversations between ICE and law enforcement agencies across the nation, and the revised report will add to this discussion," Rodriguez said.
Jurisdictions that limit their cooperation with immigration authorities are commonly described as "sanctuary cities" for immigrants in the country illegally. Trump has promised to cut their federal funding.
ICE's weekly report is one of multiple initiatives taken by the Trump administration to achieve this promise. We continue to rate this promise In the Works.
Email exchange with ICE media relations, April 11, 2017
New York Times, Trump Administration Halts Reports on Immigration Cooperation, April 10, 2017
U.S. Customs and Immigration Enforcement, Declined detainers report
AG Jeff Sessions says jurisdictions must comply with federal laws in order to get DOJ grants
Attorney General Jeff Sessions said states and local jurisdictions pursuing Justice Department grants will need to prove compliance with federal laws in order to receive funds.
Sessions specifically said that as condition for receiving Justice Department grants, jurisdictions will be required to certify compliance with 8 U.S. Code Section 1373 – which says federal, state or local officials may not restrict the exchange with federal immigration officers of information regarding the citizenship or immigration status of any individual.
His statements take aim at so-called "sanctuary cities," jurisdictions that limit their assistance to immigration authorities and which President Donald Trump has promised to defund if they don't cooperate.
Sessions' March 27 remarks at a White House press briefing indicated this wasn't necessarily a new mandate created by the Trump administration.
"This policy is entirely consistent with the Department of Justice's Office of Justice Programs guidance that was issued just last summer under the previous administration … It also made clear that failure to remedy violations could result in withholding grants, termination of grants, and disbarment or ineligibility for future grants," Sessions said.
During this fiscal year, the Office of Justice Programs and Community Oriented Policing Services expects to award more than $4.1 billion in grants, according to Sessions.
The Justice Department, led by Sessions, will "take all lawful steps to claw back any funds" given to jurisdictions which "willfully" violate Section 1373, he said.
Asked by a reporter during the briefing if he was taking any additional steps beyond what the Obama administration imposed, Sessions said grants in the future could have additional requirements.
While the Justice Department has voiced intent to block grants to localities not cooperating with federal immigration authorities, other executive departments also issue grants. We continue to rate Trump's promise to cancel all funding of sanctuary cities as In the Works.
CQ, Transcript, White House press briefing, March 27, 2017
Cornell University Law School, 8 U.S. Code Section 1373
Justice Department, Attorney General Jeff Sessions Delivers Remarks Announcing Sanctuary Jurisdictions, March 27, 2017
ICE publishes list of jurisdictions not cooperating with detainer requests
President Donald Trump's administration on March 20 issued its first weekly report on jurisdictions that do not honor detainer requests from immigration authorities -- a more formal description of "sanctuary cities." Trump mandated the launch of the reporting tool in a Jan. 25 executive order.
U.S. Immigration and Customs Enforcement sends detainer requests to law enforcement agencies to alert them of an intent to take into custody individuals before they are released by local authorities. Detainers ask agencies to hold individuals for immigration enforcement authorities for up to 48 hours.
The Declined Detainer Outcome Report names localities (such as city and county jails) that release individuals despite federal requests.
Aside from the name of the law enforcement agency, the report includes the dates detainers were issued and denied, and individuals' citizenship and notable criminal activity.
From Jan. 28 to Feb. 3, jurisdictions declined at least 206 ICE detainers, the report said. Not all agencies that declined a request had "sanctuary city" policies.
However, the report did identify jurisdictions that have enacted policies to limit their cooperation with ICE. The determinations were based on public announcements, news reports, publicly disclosed policies and information provided directly to ICE, the report said.
Places listed include cities such as New York City, Hernando County in Florida, and New Mexico county jails.
The report noted that jurisdictions' policies may have changed since the report's publication.
This new publication identifies jurisdictions limiting cooperation with immigration officials, but is not yet a call to cut their funding. It's fair to say it would be a first step toward that action. We continue to rate this promise In the Works.
Department of Homeland Security, DHS releases U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report, March 20, 2017
Executive order targets cities that shield people here illegally
President Donald Trump signed an executive order Jan. 25 directing the attorney general's office and the secretary of homeland security to withhold grant money from cities that protect undocumented immigrants, otherwise know as "sanctuary cities."
This executive order doesn't completely fulfill Trump's campaign pledge to cut funding of sanctuary cities, but it does start the process.
"Part of this is a directive to the secretary to look at those funding streams and figure out how they can be cut off," said White House press secretary Sean Spicer on Jan. 25. "So that's what the actual order directs them to do."
Throughout the campaign, and after it, Trump repeatedly cited cases of Americans killed by people he said shouldn't have been in the country, arguing that all federal funding should be cut for places unwilling to help immigration authorities.
"Sanctuary jurisdictions across the United States willfully violate federal law in an attempt to shield aliens from removal from the United States," the order reads. "These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our republic."
The order specifically instructs the attorney general's office to identify cities that refuse to comply with U.S. law and ensure they are not given federal grants. It also directs the secretary of the department of homeland security to designate jurisdictions as sanctuary cities.
Trump's administration might run into problems trying to cut funding if existing court rulings apply to the action.
South Dakota vs. Dole concluded that Congress could not coerce local governments to act based on the threat of withholding federal funds. Also, any funds that are withheld must be germane to the reason they are being withheld.
The court ruling dealt with Congress, however, and not the executive, and there is ambiguity about both what tactic Trump might pursue and the legal precedence behind it.
The executive order also makes calls to remove criminal undocumented immigrants, another one of Trump's campaign promises.
Trump's directive will start the process of cancelling all funding to sanctuary cities, but it's possible there will be some roadblocks along the way. We rate this promise as In the Works.
Email interview with Steven Cheung, White House spokesperson, Jan. 25, 2017
PolitiFact, "New York City mayor says president can't defund sanctuary cities 'across the board'," Dec. 1, 2016.
PolitiFact, "Trump-O-Meter: Remove criminal undocumented immigrants," Jan. 16, 2016
FindLaw, South Dakota v. Dole
WhiteHouse.gov, "Executive Order: Enhancing Public Safety in the Interior of the United States," Jan. 25, 2017
Trump will likely need help from Congress
Donald Trump contends many immigrants in the country illegally pose a threat to public safety. During his presidential campaign, he routinely cited cases of Americans killed by people he said shouldn't have been in the country.
There are cities and counties across the United States that choose not to actively assist federal authorities in carrying out immigration enforcement duties, arguing that such practices negatively impact police-community relations, and that ultimately it's not their responsibility to enforce federal laws. Some studies have also shown that immigrants, regardless of legal status, are less inclined than native-born individuals to commit crimes.
"We will end the sanctuary cities that have resulted in so many needless deaths," Trump said during a speech on immigration in Phoenix in August 2016. "Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars, and we will work with Congress to pass legislation to protect those jurisdictions that do assist federal authorities."
WHY HE'S PROMISING IT
Trump says thousands of Americans have been killed by immigrants illegally in the country and that immigration laws must be enforced to prevent future crimes.
Some people who should've been deported are not being turned over from local to federal authorities because of "sanctuary" policies, Trump says.
Sanctuary cities (which can be a town, county or other jurisdiction) limit their assistance to federal immigration authorities seeking to apprehend and deport immigrants in the country illegally.
WHAT NEEDS TO HAPPEN
Trump has said he will cut federal funding to sanctuary cities during his first day in office, but he has not said what specific measure he would take to do so.
Congress can help Trump carry out his promise by passing laws that defund sanctuary cities.
Sen. Pat Toomey, a Republican from Pennsylvania, introduced a bill in June 2016 called the Stop Dangerous Sanctuary Cities Act. Though the bill failed to advance in the Senate, it attempted to block sanctuary jurisdictions from getting grants under certain economic and community development programs.
An identical bill has been introduced in the House and referred to the Subcommittee on Immigration and Border Security.
HOW MUCH WILL IT COST
There are more than 500 counties and cities with policies not to assist U.S. Immigration and Customs Enforcement, according to the Immigrant Legal Resource Center. That number fluctuates as jurisdictions drop or adopt practices.
The amount of money "sanctuary" jurisdictions get from the federal government varies. For instance, New York City this fiscal year is set to receive about $7.7 billion in federal categorical grants (for specific programs).
Boston gets about $250 million a year from the federal government.
WHAT'S STANDING IN HIS WAY
That case concluded that Congress could not coerce local governments to act based on the threat of withholding federal funds. Also, any funds that are withheld must be germane to the reason they are being withheld.
For instance, if the federal government gives New York money for mass transit, and New York doesn't want to participate in a federal initiative for education, the federal government can't in turn threaten the mass transit funds, Richard Primus, a law professor at the University of Michigan previously told PolitiFact.
Trump has promised to cancel all federal funding to sanctuary cities on his first day in office, but has not said what action he'll take to achieve that.
The power to disburse government funds rests with Congress, not the president.
Congress may pass laws that support Trump's goal, but a timeline for their enactment depends on legislative support. Congressional action to restrict all federal funds to sanctuary cities may also face constitutional challenges if they don't meet criteria defined by South Dakota v. Dole.